Con^stitutional  Law 

And 

Leading  Cases 


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-T 


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CONSTITUTIONAL  LAW 


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CONSTITUTIONAL  LAW 


AN  INTRODUCTORY  TREATISE  DESIGNED 
FOR  USE  IN  SCHOOLS  WHERE  THE  PRINCI- 
PLES OF  THE  CONSTITUTION  ARE  STUDIED 


BY 


H.  J.  FENTON,  M.  A.,  LL.  B. 

Instructor,  U.  S.  N.  A. 


REVISED  EDITION 
JULY,  1914 


1914 

THE  UNITED  STATES  NAVAL  INSTITUTE 

Annapolis,   Md, 


COPYKIGHT,    1914,  BY 
E.  J.    KING 

Secretary  and  Treasurer  of  the 
U.  S.  NAVAL  INSTITUTE 


T 

F  3  ^  ''^  -^  c 

1914 


ZU  £otb  (^afttmore  (pr««» 

BALTIMORE,   MD.,  U.   S.   A. 


INTRODUCTION 

Scope. — This  book  is  introductory  in  scope.  It  is  a  study 
of  the  text  of  the  Constitution  and  the  principles  of  law  per- 
taining to  it,  designed  mainly  for  those  students  who  are 
just  beginning  their  inquiry  into  the  subject  of  law  and  gov- 
ernment. By  it  it  is  hoped  that  the  student  may  obtain  such 
knowledge  of  the  instrument  of  government  under  which  this 
country  has  lived  for  more  than  a  century  as  is  almost  requi- 
site for  a  liberal  education  and  for  good  citizenship;  and 
that  those  who  have  the  time  and  the  inclination  to  pursue 
the  subject  further  may  be  inspired  to  do  so. 

Sources. — Except  perhaps  in  the  use  of  cases  and  in  certain 
minor  details  this  book  pretends  to  no  originality.  It  is  the 
business  of  the  law  writer,  like  the  historian,  to  record  rather 
than  to  make.  It  is  partly  from  classroom  notes,  the  product 
of  ten  years  in  the  teacher's  chair;  partly  from  the  writings  of 
such  excellent  publicists  as  Story,  Black,  Cooley,  McLain, 
Pomeroy,  Wilson,  Baldwin  and  Burgess;  and  partly  from  a 
wide  reading  among  the  cases  decided  by  the  Supreme  Court 
that  this  book  is  compiled. 

Cases. — Since  American  Constitutional  Law  is  largely  a 
child  of  the  Supreme  Court  the  writer  has  made  frequent  use 
of  cases  for  illustrative  purposes,  and  has  besides  referred  to 
many  others  in  footnotes.  Furthermore,  an  abstract  of  the 
leading  and  most  interesting  Supreme  Court  cases  is  printed 
in  Chapter  IX,  which,  it  is  hoped,  will  be  found  interesting 
and  useful,  both  to  instructor  and  to  student.  These  cases  may 
be  used  as  best  suits  the  instructor — either  as  review  prob- 
lems to  be  interpreted  by  the  student's  application  of  prin- 
ciples previously  learned,  or  as  illustrative  material  by  the 


6  iNraODDCTION 

teacher  in  his  classroom  discussions.  They  have  been  used  by 
the  writer  in  both  ways,  and  have  been  found  almost  invalu- 
able as  a  means  of  fixing  the  principles  of  the  Constitution 
in  the  student's  mind,  and  of  securing  an  interest  in  the  study 
not  so  easily  obtained  in  any  other  way. 

Acknowledgment. — The  writer  feels  peculiarly  indebted  to 
the  other  members  of  the  English  Department  of  the  United 
States  Naval  Academy  for  their  friendly  interest  in  the  pub- 
lication of  this  book,  and  especially  for  their  many  excellent 
suggestions  and  keen  criticisms  of  the  manuscript.  Without 
such  friendly  cooperation  the  task  of  bringing  the  volume  to 
completion  would  have  been  very  much  greater. 

H.  J.  F. 

United  States  Naval  Academy, 
NOVEMBEB  1,   1913. 


Chapter  I. 

Chapter  II. 

Chapter  III. 

Chapter  IV. 

Chapter  V. 

Chapter  VI. 

Chapter  VII. 


Chapter  VIII. 
Chapter  IX. 
Appendix  A. 
Appendix    B. 


CO^^TEXTS 

PAGE 

Chronology  of  the  Constitution 9 

Definitions  and  Historical  Sketch 13 

The  Congress,   Composition,   Development  of, 

etc..  Art.  1,  Sees.  1-7 27 

The  Powers  of  Congress,  Art.  1,  Sec.  8 83 

Limitations  on  Congress  and  the  States,  Art.  1, 

Sees.  9-10  139 

The  Executive,  Powers  of,  etc..  Art.  2 167 

The  Judiciary,  Art.  3 203 

Miscellaneous,  Art.  4 227 

Methods  of  Amending,  Art.  5 240 

Validity   of    Debts;    Fundamental    Law,    etc.. 

Art.   6 243 

Ratification,   Art.   7 246 

Amendments    251 

Leading  Cases   293 

The  Articles  of  Confederation 313 

The  Constitution   (Original  Print) 321 

Index    341 


CHRONOLOGY  OF  THE  CONSTITUTION 

1774  The  First  Continental  Congress  convened. 

1776  The  Declaration  of  Independence. 

1781  The  Articles  of  Confederation,  proposed  by  the  Congress 
in  1778,  were  adopted. 

1786  The    Annapolis    Convention. 

1787  The  Philadelphia  Convention  framed  the  Constitution. 
1789  The  Constitution,  ratified  by  the  requisite  number  of  States, 

became  the  organ  of  government. 
1791    Amendments    1-10,    proposed   by    Congress    in    1789,    were 

adopted. 
1798  The  11th  Amendment,  proposed  in  1794,  was  adopted. 
1804  The  12th  Amendment,  proposed  in  1803,  was  adopted. 
1865  The  13th  Amendment,  proposed  in  1865,  was  adopted. 
1868  The  14th  Amendment,  proposed  in  1866,  was  adopted. 
1870  The  15th  Amendment,  proposed  in  1869,  was  adopted. 
1913  The  16th  Amendment,  proposed  in  1909,  was  adopted. 
1913     The  17th  Amendment,  proposed  in  1912,  was  adopted. 


CHAPTER  I 
A  CHAPTER  OF  DEFINITION'S 

AND 

HISTORICAL  SKETCH 


A  CHAPTER  OF  DEFINITIONS 
Law:  International,  Municipal,  and  Constitutional 

Law. — Law  may  be  broadly  defined  as  "a  rule  of  action, 
imposed  by  a  superior,  which  an  inferior  is  bound  to  obey."  * 
The  law  of  gravitation,  the  law  of  heredity,  the  law  of  supply 
and  demand — these,  as  well  as  regulations  made  by  man,  come 
under  this  wide  definition.  Our  present  study,  however,  is 
of  law  in  a  narrower  and  more  technical  sense ;  and  as  such  it 
may  be  defined  as  "  a  rule  of  civil  conduct,  prescribed  by  a 
competent  civil  authority,  commanding  certain  things  as 
necessary  to,  and  forbidding  certain  other  things  as  incon- 
sistent with,  the  peace  of  society."  * 

International  and  Municipal  Law. — In  a  technical  sense 
law  is  of  two  kinds.  International  and  Municipal.  Inter- 
national law  comprises  those  rules  of  conduct  which  are  agreed 
to  by  civilized  nations  for  regulating  their  common  inter- 
course. Strictly  speaking,  these  are  not  laws,  although  loosely 
termed  such,  for  the  rules  of  conduct  agreed  to  by  nations  are 
not  prescribed  by  any  superior  authority,  and  there  is  no 
power,  except  War,  to  compel  obedience  to  them.  Inter- 
national laws  might  well  be  termed  international  agreements. 
Municipal  law,  on  the  other  hand,  includes  those  rules  of  civil 
conduct  prescribed  by  the  supreme  power  in  a  State,  or  depart- 
ment thereof,  and  regulating  the  intercourse  of  the  State  with 
its  subjects,  and  of  the  subjects  witli  one  another.  Under 
this  head  come  statutes,  ordinances,  regulations,  and  all  that 
machinery  necessary  to  maintain  the  peace  and  order  of  a 
civilized  community. 

*  Robinson's  Elementary  Law. 


14  Constitutional  Law 

Written  and  Unwritten  Laws. — It  matters  not  whether  the 
rules  for  the  regulation  of  a  civilized  State  are  written  or  un- 
written; if  they  exist  under  a  directing,  superior  authority, 
and  govern  the  intercourse  of  State  and  subjects,  or  of  sub- 
jects with  one  another,  they  are  laws.  An  unwritten  law 
derives  its  force  from  long  established  custom,  and  may  serve 
its  purpose  in  society  quite  as  well  as  one  that  is  written  or 
printed,  and  that  men  may  read  ^ ;  but  since  the  day  of  un- 
written law  is  largely  past,  we  may  better  confine  our  attention 
to  written  law,  or  that  law  prescribed  directly,  in  so  many 
words,  by  the  supreme  power  in  the  State,  or  of  some  depart- 
ment thereof.    Such  law  is  usually  in  the  form  of 

Statutes  and  Ordinances. — An  ordinance  is  a  rule  of  con- 
duct prescribed  by  some  minor  department  within  a  State, 
such  as  a  town  or  a  city,  for  the  preservation  of  good  order 
therein.  A  statute  is  an  enactment  made  by  the  supreme  law 
making  body  of  a  State  (in  the  United  States,  the  Congress; 
in  the  several  States,  the  respective  legislatures) . 

Statutes  at  Large. — These  are  the  Federal  statutes,  printed 
in  full  in  large  volumes,  as  distinguished  from  abridgments 
and  revisions.  The  acts  of  each  Congress  are  compiled  sepa- 
rately; volume  o~i,  for  example,  containing  all  the  acts  of 
the  GOth  Congress,  1907-1909.  In  the  case  of  variance  between 
an  act  of  Congress,  as  printed  in  the  statutes,  and  the  original, 
as  enrolled  and  deposited  with  the  Secretary  of  State,  the  latter 
must  prevail.* 

Revised  Statutes. — These  are  all  the  Federal  laws  that  were 
general  and  permanent  in  their  nature  and  in  force  December 
1,  187.3.  They  were  printed  in  one  large  volume  in  1875  under 
the  direction  of  the  Secretary  of  State  (see  Stat,  at  Large, 
18,  113).    Congress  has  since  authorized  the  publication  of 

'  For  fuller  discussion  of  this  see  page  267. 
•  38  Pacific  Reporter,  973. 


Chapter  of  Definitions  15 

several  supplements  to  this  volume,  covering  the  period  from 
187;3  to  1907.  The  Statutes  at  Large,  then,  are  all  the  laws 
devised  by  Congress  since  the  first  session,  and  they  fill  many 
volumes;  the  Revised  Statutes  are  those  Federal  laws  that 
have  not  been  repealed  from  time  to  time  by  Congress,  or 
rendered  inoperative  by  later  legislation,  and  are  contained  in 
a  single  volume  with  a  few  sui)pk'ments. 

Constitutions  Defined  and  Classified. — A  constitution  is  a 
fundamental  body  of  law  serving  as  the  basis  of  the  govern- 
ment of  a  vState.  It  is  the  backbone  of  a  State,  the  guide  and 
test  for  all  political  action  within  the  State.  Constitutions 
may  be  unwritten  or  written.  An  unwritten  constitution  is 
one  of  gradual  accumulation ;  one  that  has'  grown  up  by  slow 
evolution,  and  not  contained  in  any  single  document,  or  re- 
duced wholly,  if  at  all,  to  writing.  This  is  the  oldest  form  of 
constitutions,  as  unwritten  laws  were  the  earliest  forms  of 
laws.  Such  was  the  Roman  Constitution,  and  such  is  still 
Ihe  foundation  of  the  government  of  Great  Britain.  The 
latter  country  indeed  may  be  said  to  have  the  only  unwritten 
constitution  in  existence  to-day.  It  is  the  result  of  a  slow 
accumulation  of  principles.  Its  larger  provisions,  such  as 
the  Jfagna  Charta,  the  Petition  of  Rights,  the  Habeas  Corpus 
Act  and  the  Bill  of  Rights  have  been  adopted  at  various  times 
and  in  various  ways.  Besides  these  are  many  principles  de- 
rived from  court  decisions,  and  customs  enforced  only  by 
general  acquiescence.  Only  Parliament  can  alter  the  Consti- 
tution, and  no  act  by  that  body  can  be  held  invalid  as  uncon- 
stitutional. Tlie  foundation  of  the  British  government  is 
largely  in  the  conservatism  of  the  British  people.  A  written 
constitution,  on  the  other  hand,  is  a  written  instrument,  or 
document,  which  is  complete  in  itself.  It  is  usually  adopted 
at  one  time  and  hy  one  act,  although  modified  perhaps  by 
later  amendments.  It  is  drawn  up  for  the  distinct  purpose  of 
serving  as  the  basis  of  government  in  the  State  that  creates  it. 


16  Constitutional  Law 

The  Constitution  of  the  United  States  ife'  such  a  written  in- 
strument, and  so  are  the  constitutions  of  the  respective  States 
of  the  Union.  These  instruments  of  government  are  funda- 
mental in  this  respect,  namely,  that  whatever  Congress  enacts 
must  conform  to  the  provisions'  of  the  Constitution,  and  what- 
ever the  States'  legislatures  enact  must  conform  to  the  States' 
constitutions  and  also  to  the  Constitution  of  the  United  States. 
Constitutional  Law. — This  is  not  susceptible  of  a  ready  and 
accurate  definition,  for  it  is  not  wholly  law  in  the  technical 
sense.  Briefly,  it  may  be  said  to  be  that  branch  of  juris- 
prudence which  treats  of  constitutions.  But  the  constitution 
of  a  nation  is  inseparably  linked  with  the  nation's  history,  and 
students  of  law  have  come  to  recognize  the  fact  that  constitu- 
tional law  is  in  a  peculiar  sense  a  branch  of  history,  and  is  to 
be  studied  in  a  historic  spirit.  Constitutional  law  therefore  is 
not  so  much  a  body  of  customs,  maxims,  or  enactments,  as 
it  is  a  science,  an  historical  study.  Eegarded  in  this  light  the 
constitutional  law  of  the  United  States  may  be  said  to  include 
the  following:  1st,  the  Constitution  itself;  2d,  the  history  of 
its  establishment;  3d,  the  construction  put  upon  its  various 
clauses  by  the  courts,  as  their  meaning  has  been  brought  into 
question  by  properly  instituted  cases;  4th,  and  lastly,  the 
validity  of  legislative  enactments  as  tested  by  their  conformity 
to  the  Constitution.  It  is  well,  however,  that  the  student, 
before  undertaking  the  study  of  the  Constitution  and  the  in- 
terpretation of  its  clauses,  should  have  a  clear  understanding 
of  the  reasons  for  the  adoption  of  this  instrument  as  the  basis 
of  government.  This  understanding  it  is  hoped  he  will  get  by 
the  following  brief  historical  sketch. 

IIISTOEICAL  SKETCH 

The  Articles  of  Confederation. — ^With  the  Declaration  of 

Independence,  1776,  the  American  colonies  severed  themselves 
from  British  control.    To  be  sure,  that  severance  was  not  at 


Historical  Sketch  17 

all  certain  to  be  lasting,  for  the  war  had  just  begun ;  but  the 
people  were  so  united  in  their  opposition  to  the  mother  country 
and  so  determined  to  be  free  that  they  immediately  set  about 
to  establish  some  definite  form  of  government.  At  this  time, 
the  student  should  remember,  there  was  no  such  thing  as  a 
united  American  people,  but  only  a  thin  line  of  half-formed 
States  stretched  along  the  Atlantic  seaboard,  exceedingly 
jealous  of  one  another,  but  held  together  for  the  time  being 
by  a  common  danger  and  interest.  A  body  of  delegates  from 
the  several  colonies,  which  had  first  convened  in  1774,  was  by 
common  consent  conducting  the  war.  This  was  the  Conti- 
nental Congress.  It  was  a  provisional  body  merely,  made 
necessary  by  stress  of  the  times.  It  was  bound  by  no  organ 
of  government ;  its  acts  were  sanctioned  by  no  nation.  If  the 
self-freed  colonies  therefore  were  to  become  anything  more 
than  a  number  of  weak  and  petty  principalities,  more  or  less 
sure  to  be  brought  again  beneath  the  British  yoke,  they  must 
before  long  hit  upon  some  plan  of  amalgamation.  Accord- 
ingly, within  two  years  after  the  Declaration  of  Independence, 
or  in  1778,  the  members  of  the  Continental  Congress  had 
drawn  up  an  organ  of  government  known  as  the  Articles  of 
Confederation,  which  was  designed  to  be  the  authority  for  all 
acts  of  the  Congress,  and  a  means  of  guidance  for  the  new 
nation. 

This  famous  document  represents  the  first  attempt  by  the 
American  people  to  frame  a  general  constitution.  When  com- 
pleted by  the  Congress  it  was  submitted  to  the  thirteen 
colonies — or  new-born  States — for  their  approval.  IMaryland, 
the  last  State  to  ratify  the  Articles,  gave  her  consent  in  1781. 
Then  the  instrument  became  binding.  By  ratification  the 
States  gave  their  free  consent  to  become  members  of  a  con- 
federation having  a  central  government.  The  adoption  of  tlie 
Articles  did  not,  however,  much  change  the  nature  of  what  had 
been  the  government  before;  it  merely  gave  the  people  a  sort 
2 


18  COXSTITUTIOXAL    LaW 

of  rudder  with  which  to  steer  their  ship  of  state.  The  same 
Congress  of  delegates  from  the  several  States  continued  to 
govern  the  Confederation,  as  well  as  the  Articles  allowed  it  to 
do,  and  it  continued  to  meet  in  yearly  sessions  until  1789, 
when  the  Articles  of  Confederation  were  superseded  by  the 
Constitution  of  the  United  States.  The  name  "  Continental," 
however,  clung  to  the  Congress  after  the  adoption  of  the 
Articles;  hence  the  Congress  that  adjourned  in  1789  is  some- 
times termed  the  14th  Continental  Congress.  The  "  Federal " 
Congress  originated  with  the  Constitution. 

Why  the  Articles  of  Confederation  Failed. — Before  the 
Revolution  the  colonists  had  been  ruled  by  a  far  away  govern- 
ment, which  they  had  learned  to  distrust  and  fear.  When  the 
war  was  well  advanced,  and  they  found  that  they  were  about 
to  substitute  for  the  distant  government  one  nearer  home, 
they  began  to  distrust  that  too.  In  truth,  the  people  were 
naturally  apprehensive  of  any  government  except  that  in  their 
immediate  localities.  The  great  question  of  States'  rights, 
which  was  to  cause  so  much  trouble  for  the  nation  later  on, 
was  even  then  before  them.  As  a  wliole  they  had  no  very 
distinct  notion  of  the  value  of  national  unity  except  for  de- 
fensive purposes.  Therefore  it  is  not  strange  to  find  that, 
before  they  agreed  to  the  Articles  of  Confederation,  which 
established  a  central  government,  they  made  sure  that  the 
government  was  to  have  little  power.  Consequently,  the 
Articles  worked  badly  from  the  beginning,  for  they  were 
glaringly  inadequate  to  the  needs  of  such  a  country  as  the 
United  States.  Briefly,  they  created  a  confederation,  not  a 
union ;  they  provided  no  head  to  the  organization ;  and  though 
they  gave  Congress  full  power  to  recommend  and  to  declare, 
they  gave  it  little  power  to  do.  Perhaps  the  most  vital  weak- 
ness of  the  Continental  Congress  was  its  inability  to  tax, 
for  without  that  power  no  government  can  prosper.  The  only 
means  of  raising  money  which  Congress  had  under  the  Articles 


Historical  Sketch  19 

of  Confederation  were:  to  make  requisitions  on  the  States — • 
with  no  power  to  collect  them;  to  borrow  from  foreign  na- 
tions; and  to  issue  paper  currency.  Of  these,  the  first  was 
very  uncertain,  the  other  two  tended  to  financial  ruin.  The 
result  of  these  weaknesses  was  that  the  Congress  began  rapidly 
to  lose  power  at  home  and  respect  abroad;  while  the  States, 
relieved  of  their  common  enemy,  began  to  irritate  each  other 
and  to  make  trouble  for  the  central  government.  Each  State 
maintained  its  own  troops,  regulated  its  internal  and  foreign 
commerce  as  it  pleased,  often  to  the  detriment  of  neighboring 
States,  and  paid  or  withheld  its  quota  of  the  general  tax  at 
will.  Since  voting  in  the  Congress  was  by  States,  a  large 
State  that  sent  many  delegates  had  no  more  authority  than  a 
small  State  that  sent  but  few;  and  a  comparatively  small  num- 
ber of  members  could  negative  any  measure.  Furthermore, 
since  each  State  paid  its  own  delegates  to  the  Congress,  some 
found  it  convenient  occasionally  to  send  none  at  all. 

The  Annapolis  Convention. — These  conditions  could  not 
long  endure.  In  the  year  1786,  therefore,  at  the  instance  of 
"S'irginia,  delegates  from  several  States  met  in  Annapolis,  Md., 
for  the  purpose  of  discussing  interstate  trade,  and  of  recom- 
mending a  uniform  system  of  commercial  regulations.  Of  the 
States  invited  only  five  sent  delegates — New  York,  New 
Jersey,  Pennsylvania,  Delaware  and  Virginia.  Although  the 
convention  met  in  the  capital  city  of  Maryland,  that  State  was 
not  represented.  The  a-ssembly  offers  the  rather  singular 
instance  of  a  body  which,  although  convened  to  discuss  jin 
important  public  matter,  deliberated  instead  a  public  ques- 
tion very  different,  but  quite  as  important.  Because  the  mem- 
bers were  few,  they  did  not  enter  upon  the  proper  business  of 
the  Convention  at  all,  but  drew  up  a  resolution  instead,  devised 
by  Alexander  Hamilton,  expressing  their  unanimous  convic- 
tion that  the  constitution  of  the  existing  government  was  not 
adequate  to  the  needs  of  the  nation.    This  resolution  with  its 


20  Constitutional  Law 

pertinent  suggestion  led  to  the  assembling  of  that  remarkable 
convention  in  Philadelphia  the  next  year  which  framed  the 
Federal  Constitution. 

Effect  of  the  Kesolution. — The  resolution  was  at  once  sub- 
mitted to  the  legislatures  of  the  several  States  and  to  the  Con- 
gress. The  latter  body  could  do  nothing  but  recommend,  but 
it  did  that  with  reasonable  quickness.  In  February,  1787,  it 
passed  a  resolution  calling  the  attention  of  the  States  to  the 
failure  of  the  Articles  of  Confederation,  and  suggesting  that  a 
convention  of  delegates  from  all  the  States  should  assemble  in 
the  month  of  May  following  to  revise  them.  In  response  to 
this  suggestion,  delegates  from  every  State  except  Ehode 
Island  met  in  the  city  of  Philadelphia  on  the  14th  of  May, 
1787,  and  by  the  25th  of  that  month  were  hard  at  work  re- 
modelling the  ship  of  state. 

A  Convention  of  Famous  Men. — It  was  a  remarkable  body 
of  men  that  composed  the  Constitutional  Convention.  Its 
presiding  officer  was  George  Washington,  one  of  the  great  men 
of  all  time,  of  whom  an  English  historian  has  said :  "  No 
nobler  figure  ever  stood  in  the  forefront  of  a  nation's  life."  * 
There  was  Franklin,  scientist,  author,  inventor,  statesman; 
to  whose  prudence,  calmness,  and  sagacity  Americans  owe  an 
everlasting  debt.  There  was  Hamilton,  one  of  the  greatest 
constructive  statesmen  that  ever  lived.  There,  too,  were 
Madison,  and  Sherman,  and  Ellsworth,  and  Pinckney,  and 
Morris,  all  men  of  affairs,  well  versed  in  history,  in  letters, 
and  in  the  ways  of  men.  The  Convention  furthermore  was 
mainly  composed  of  young  men.  Their  average  age  was  43 ; 
ranging  from  Franklin,  81,  to  J.  Francis  Mercer,  28.  Ells- 
worth was  42 ;  Madison  was  36 ;  Gouverneur  Morris  was  35 ; 
Edmund  Randolph  was  34 ;  and  Hamilton  but  30.  Thus  ag^e, 
with  its  experience  and  ripened  judgment,  and  youth,  with  its 
energy  and  abounding  hope,  united  to  produce  what  no  less 

*  J.  R.  Green. 


Historical  Sketch  21 

a  man  than  Gladstone  has  said  was  "  the  greatest  political 
instrument  ever  struck  off  on  a  single  occasion  by  the  minds 
of  men." 

The  Work  of  the  Convention. — The  avowed  purpose  of  the 
Convention  was  to  revise  the  Articles  of  Confederation.  To 
revise  had  been  the  instruction  given  by  most  of  the  States  to 
their  delegates.  But  before  the  assembly  had  been  long  at 
work  better  statesmanship  prevailed.  Two  schemes  of  gov- 
ernment were  laid  before  the  Convention :  one  by  Mr.  Patter- 
son of  New  Jersey,  providing  for  the  revision  of  the  Articles ; 
the  other  by  Mr.  Randolph  of  Virginia,  calling  for  an  entirely 
new  constitution.  After  due  deliberation  the  Convention 
wisely  decided  that  it  was  easier  and  better  to  construct  a  new 
instrument  than  to  patch  up  the  old,  and  they  proceeded  to 
do  so.  Not  without  misgivings  on  the  part  of  many  members 
Mr.  Randolph's  plan  was  adopted;  the  insufficient  Articles 
of  Confederation  were  forever  abandoned,  and  a  new  Con- 
fctitution  was  begun.  In  framing  a  new  Constitution,  how- 
ever, little  that  was  new  in  principle  entered  into  the  work. 
The  men  of  the  Convention  did  not  dare  to  experiment.  They 
did  not  believe,  as  did  the  French  at  a  later  period,  that  work- 
ing political  principles  could  be  made  off-hand.  Instead  of 
creating  they  made  wise  selection  from  materials  right  at 
hand.  The  British  Government  had  been,  and  was  still,  suc- 
cessful, and  it  was  a  representative  government.  The  States 
all  had  constitutions  that  seemed  to  work  well.  It  was  from 
these  working  models  that  the  Convention  took  most  of  the 
principles  now  embodied  in  the  Federal  Constitution.  The 
Articles  of  Confederation  had  provided  for  no  Executive ;  the 
Convention  created  a  President  modelled  on  the  English 
Crown  in  some  respects,  on  the  State  governors  in  certain 
others.  The  Continental  Congress  was  a  single  body  having 
both  legislative  and  executive  functions ;  the  Convention  pro- 
Tided,  for  a  Congress  which  should  consist  of  two  houses  and 


32  Constitutional  Law 

have  legislative  powers  mainly — in  many  ways  resembling  the 
British  Parliament  and  the  legislatures'  then  in  operation  in 
the  States.  Under  the  Articles  there  was  no  system  of  national 
courts;  the  Convention  provided  for  a  national  judiciary,  in 
many  respects  like  the  British.  In  short,  the  broad,  basic 
principles  woven  into  the  Constitution  were  principles  that 
had  already  stood  the  test  of  time  within  the  political  ex- 
perience of  the  men  in  the  Convention.  It  has  been  said  that 
those  parts  of  the  Constitution  which  were  copied  from  the 
English  system  of  government,  or  from  the  systems  operating 
in  the  States,  have  worn  the  best,  while  those  that  were 
original  have  been  less  satisfactory. 

The  document  was'  finished  and  signed  by  the  men  of  the 
Convention  on  the  17th  of  September,  1787.  It  was  im- 
mediately submitted  to  the  people  of  the  States  for  their 
approval.  Within  two  years  it  had  received  the  necessary 
ratification,  and  in  the  spring  of  1789  it  went  into  operation, 
superseding  forever  the  Articles  of  Confederation. 

The  Constitution  is  Unique. — As  a  successful  organ  of  gov- 
ernment the  Constitution  is  unique.  In  the  excellence  of  its 
scheme,  in  its  adaptation  to  a  diversified  people,  in  its  brevity, 
simplicity,  and  precision  of  language,  it  ranks  above  every 
other  written  constitution.  History  can  show  few  examples  of 
governmental  documents  at  once  so  momentous  and  so  short. 
The  English  Constitution — so  far  as  England  can  be  said  to 
have  a  Constitution — consists  of  hundreds  of  volumes  of 
statutes  and  reported  cases;  the  Federal  Constitution  can  be 
read  through  in  less  than  half  an  hour.  It  was  made  short  for 
a  purpose.  It  was  intended  to  be  a  people's  Constitution, 
easily  to  be  read  and  understood.  Furthermore,  its  makers 
realized  that  the  more  they  specified,  the  more  they  should 
have  to  specify.  The  document  was  therefore  made  rather 
general  in  its  principles;  much  was  left  to  be  filled  in  by  later 
legislation,   much  to  be  worked  out  by   interpretation.     A 


Historical  Sketch  23 

century  and  more  has  now  passed  since  the  Constitution  was 
written,  during  which  time  it  has  been  subjected  to  a  severe 
experience.  Hardly  a  line  in  it  but  has  been  made  the  subject 
of  judicial  examination.  It  has  withstood  the  shock  of  the 
greatest  civil  war  in  history.  Amendments  have  been  added 
to  it;  some  of  its  minor  principles  have  through  time  and 
changing  circumstances  become  dead  letters;  but  its  general 
features  stand  unaltered — an  enduring  monument  to  men 
who  "  builded  better  than  they  knew.'* 


CHAPTER  II 

THE  PREAMBLE 

THE  T\YO  HOUSES  OF  CONGRESS 

Article  1,  Sections  1-7 


THE  PREAMBLE 

We,  the  people  of  the  United  States,  in  order  to  form  a 
more  perfect  union,  establish  justice,  insure  domestic  tran- 
quillity, provide  for  the  common  defense,  promote  the 
general  welfare,  and  secure  the  blessings  of  liberty  to  our- 
selves and  our  posterity,  do  ordain  and  establish  this 
Constitution  for  the  United  States  of  America. 

The  Opening  Clause. — The  opening  clause  of  the  Constitu- 
tion has  been  called  a  preamble  by  some,  the  enacting  clause 
by  others.  Whatever  name  is  given  to  it,  its  meaning  and  pur- 
pose are  obvious.  It  contains  in  simple  language,  without 
ostentation  or  forced  humility,  six  broad  reasons  for  the  adop- 
tion of  the  Constitution.  It  is  well  for  the  student  to  ponder 
these  reasons  briefly  before  undertaking  the  study  of  the  law 
itself;  he  may  then  pursue  his  study  with  a  more  sympathetic, 
if  not  clearer,  understanding.  Accordingly,  a  short  discussion 
of  them  is  given  herewith. 

"  We,  the  People  .  .  .  ." — A  comparison  of  this  clause  with 
the  preamble  to  the  Articles  of  Confederation  shows  this  great 
difference :  that  document  was  made  by  the  States,  the  Con- 
stitution was  made  by  the  people.  This  clause,  therefore,  is 
not  only  a  statement  of  reasons,  but  a  declaration  to  all  the 
world  that  the  United  States  comprised  one  people,  no  longer 
a  loose  confederation  of  separate  States.  The  nation  began  to 
exist  on  July  4,  1776,  but  not  until  1789,  when  the  people 
adopted  their  Constitution,  did  it  assume  a  corporate  form. 

'*  A  More  Perfect  Union." — The  Articles  of  Confederation 
created  the  United  States  of  America;  the  Constitution  per- 
fected the  Union.  Under  the  Articles  the  Union  was,  as  we 
have  seen,  imperfect.    The  phraseology  of  its  title  was  some- 


38  Constitutional  Law 

what  contradictory — "  Articles  of  Confederation  and  Per- 
petual Union,"  for  the  terms  "  confederation  "  and  "  perpetual 
union  "  do  not  have  precisely  the  same  meaning.  As  Mr.  John 
Fiske  states  in  his  admirable  text-book  on  civil  government, 
a  confederation  is  what  the  Germans  call  a  S taatenhund,  or  a 
Band-of -States;  a  union  is  a  Bundesstaat,  or  a  Banded-State. 
The  Articles  of  Confederation  made  the  former  colonies  little 
more  than  a  loosely  banded  group  of  States.  They  remained 
still  what  the  Declaration  of  Independence  had  made  them, 
separate  and  independent  little  commonwealths,  independent 
of  Great  Britain  and  of  each  other.  Mutual  jealousy  and 
distrust  now  served  to  keep  them  apart,  where  formerly  the 
fear  of  a  common  enemy  had  linked  them  together.  It  was 
to  correct  the  evils  incident  to  this  state  of  affairs,  to  make 
of  the  thirteen  commonwealths  a  Banded-State,  that  the  Fed- 
eral Constitution  was  adopted.  Even  then,  it  took  some  people 
many  years  to  grasp  the  meaning  of  the  word  Union,  to  realize 
that  the  United  States  made  one  country,  one  nation,  and  not 
a  group  of  more  or  less  independent  States.  Under  the  Con- 
stitution the  States  still  have  a  great  deal  of  independence ;  but 
they  acknowledge  now  a  superior  central  government,  they 
have  the  same  interest  in  the  present  and  a  common  hope  in 
the  future,  as  they  never  did  have  under  the  Articles  of  Confed- 
eration. 

"  Establish  Justice." — Under  the  Articles  of  Confederation 
there  was  no  Supreme  Court,  no  system  of  Federal  tribunals. 
The  States  had  their  judicial  systems,  it  is  true,  under  which 
controversies  within  the  States  were  settled  well  enough ;  but 
the  Articles  provided  no  ready  means  for  the  settlement  of 
cases  of  national  importance.  The  method  provided  by  the 
Articles  for  the  adjustment  of  disputes  between  States,  namely, 
that  Congress  should  act  as  arbiter  in  such  cases,  was  at  best 
cumbersome  and  difficult  of  operation.*    The  Constitution,  ou 

'  Art.  of  Confederation,  IX. 


The  Preamble  29 

the  other  hand,  established  justice  among  the  States  by  pro- 
viding for  a  separate  judicial  department,  and  for  the  creation 
and  maintenance  of  a  system  of  national  courts. 

"  Insure  Domestic  Tranquillity." — Where  no  strong  central 
authority  exists  in  a  republic,  internal  peace  cannot  be  assured. 
For  some  time  after  the  Eevolutionary  War  money  was 
scarce,  taxes  were  high,  and  the  people  were  distrustful.  In 
consequence,  disturbances  took  place  here  and  there  in  the 
States,  some  of  which  threatened  very  serious  results;  and  in 
no  case  was  the  Congress  of  much  assistance  in  settling  the 
trouble.  This  was  notably  so  in  the  case  of  Shays's  Eebellion, 
an  outbreak  in  Massachusetts  in  1786  that  nearly  involved 
the  entire  country,  or  a  large  part  of  it,  in  a  general  revolu- 
tion. Although  the  Congress  made  motions  and  resolutions 
respecting  the  affair,  it  did  almost  nothing  to  quiet  the  dis- 
turbance. The  outside  help  that  Massachusetts  received  came 
rather  from  neighboring  States  on  their  own  initiative,  or  at 
the  request  of  Massachusetts  herself.  To-day  a  domestic 
trouble  assuming  serious  proportions  would  call  for  immedi- 
ate legislation  by  Congress — legislation  that  could  be  enforced 
— or  quick  action  by  the  President,  or  both. 

"  The  Common  Defense." — To  provide  for  the  common  de- 
fense was  probably  the  main  reason  for  forming  the  Confed- 
eration. Yet  the  Articles  of  Confederation  gave  the  Congress 
little  or  no  power  to  insure  tranquillity  within  or  defense 
against  enemies  without.  Each  State  attempted  to  provide 
for  its  own  defense,  and  in  time  of  need  it  was  more  likely 
to  call  upon  neighboring  States  for  help  tlian  upon  the  Con- 
gress. Had  New  Hampshire,  for  example,  been  invaded  by 
troops  from  Canada  during  this  early  period,  it  is  quite  possible 
that  ^lassachusetts  would  have  sent  her  assistance,  and  very 
probable  that  Georgia  would  not,  being  too  far  away  from 
the  scene  to  feel  vitally  interested.    The  Congress,  in  such  a 


30  Constitutional  Law 

case,  might  have  declared  war  on  Canada  and  have  called  on 
the  States  to  furnish  money  and  troops  to  repel  invasion.  But 
some  States  might  have  refused  to  furnish  money  or  troops, 
and  the  Congress  would  have  been  unable  to  enforce  its  de- 
mands on  them,  for  the  Articles  gave  it  no  such  power.  In 
providing  for  the  common  defense,  therefore,  the  Constitution 
is  very  strong  where  the  Articles  of  Confederation  were  lam- 
entably weak.  To-day,  Congress  may  not  only  declare  war 
and  require  money  and  troops  from  the  States,  but  it  can 
enforce  its  requisitions  by  taxation  and  draft. 

"  The  General  Welfare." — The  phrase,  "  to  promote  the 
general  welfare,"  states  a  broad  purpose.  Every  act  of  Con- 
gress which  benefits  the  public  may  be  said  to  promote  the 
general  welfare.  But  this  phrase  is  not  to  be  interpreted  as 
giving  to  Congress  any  actual  authority.  It  merely  states  one 
of  the  broad  reasons  for  forming  the  Union,  and  for  having 
such  a  guiding  instrument  as  the  Constitution.  Congress, 
however,  has  promoted  the  general  welfare  through  powers 
distinctly  given  to  it  by  other  clauses  in  the  Constitution,  or 
implied  by  them.  It  has  passed  acts  to  conserve  forests  and 
waterways;  it  has  created  the  national  banking  system,  enacted 
inspection  laws,  and  made  tariff  regulations — ail  of  which 
may  be  said  to  advance  the  interests  of  the  general  public.  A 
careful  perusal  of  the  Articles  of  Confederation,  however,  dis- 
closes no  intention  on  the  part  of  its  makers  of  allowing  the 
Congress  any  such  scope  in  its  legislation.  It  is  doubtful  if 
the  Continental  Congress  ever  could  have  done  much  to  pro- 
mote the  general  welfare  of  the  country. 

"  The  Blessings  of  liberty." — This,  like  the  foregoing,  is 
a  general  phrase.  Paradoxical  as  it  may  seem,  the  States  by 
giving  up  liberty  have  gained  liberty.  Under  the  Articles 
of  Confederation  the  States  retained  their  sovereignty  and 
independence.  As  a  result  they  were  weak  individually, 
and  the  Confederacy  lacked  that  unity  which  is  necessary  to 


The  Two  Houses  of  Congress  31 

make  a  strong  nation.  Under  the  Constitution  the  idea  of 
complete  State  sovereignty  is  untenable,  for  much  of  the 
freedom  of  the  separate  States  is  merged  in  that  of  the  gen- 
eral government.  But  who  will  now  say  that  this  loss  of 
individual  independence  does  not  make  the  independence  of 
the  Union  greater  and  more  lasting? 

THE  TWO  HOUSES  OF  COXGRESS 
Article  1 

Section  1,  Clause  1. — All  legislative  powers  herein 
granted  shall  be  vested  in  a  Congress  of  the  United 
States,  which  shall  consist  of  a  Senate  and  House  of  Rep- 
resentatives. 

Character  of  the  National  Legislature. — The  frr.mers  of 
the  Constitution,  in  making  the  national  legislature  to  con- 
sist of  two  separate  branches,  followed  as  their  model  the 
British  Parliament,  which  consists  of  a  House  of  Lords  and 
a  House  of  Commons.  They  were  also  doubtlessly  influenced 
by  examples  at  home  of  successful  governments  whose  legis- 
latures were  thus  dual  in  character.  On  the  other  hand,  the 
Continental  Congress  was  not  divided,  but  consisted  of  a 
single  body ;  France  has  at  various  times  had  a  single  legisla- 
tive body;  Sweden  once  had  four,  corresponding  to  the  four 
classes  of  people  in  that  country;  but  experience  has  shown 
that  the  dual  legislature  is  the  most  conducive  to  good  govern- 
ment. This  is  because  one  branch  of  sucli  a  legislature  acts 
as  a  check  on  the  doings  of  the  other.  Before  a  bill  in  Con- 
gress can  become  a  law  it  is  first  reviewed  by  two  separate  and 
distinct  assemblies,  one  of  which  is  composed,  at  least  in  the- 
ory, of  older  and  more  experienced  men  than  the  other.  Hasty 
legislation  is  thus  less  possible,  for  what  may  be  passed  in  the 
heat  of  passion  by  one  house  must  bo  subjected  to  tlio  probablv 
cooler  judgment  of  the  other.     Such  a  system  of  checking  is 


32  Constitutional  Law 

not  possible  in  a  single  bodied  legislature;  and  a  deliberative 
assembly  made  up  of  three  or  four  houses  is  obviously  too 
cumbersome  for  harmonious  work. 

Of  the  two  Houses  which  compose  the  Congress  of  the 
United  States  the  Senate  is  the  smaller  and  more  conserva- 
tive. It  is  constituted  mainly  of  older  men,  who  are  elected 
for  longer  terms  and  who  are  so  divided  into  classes  that  a 
large  proportion  of  them,  as  will  be  explained  later,  will  al- 
ways have  had  the  experience  of  two  or  more  years  in  office. 
It  is  thus  the  permanent  branch  of  the  legislature.  The 
House  of  Representatives,  although  much  larger,  is  not  a  per- 
manent body,  for  it  goes  out  of  being  every  two  years,  and  its 
members  go  out  of  office  at  the  same  time.  Many  of  the  latter, 
of  course,  are  re-elected  to  serve  in  the  succeeding  House, 
but  many  others  are  supplanted  by  new  and  inexperienced 
men.  In  this  way  the  House  of  Representatives  is  ever  chang- 
ing its  personnel,  and  its  members,  coming  as  they  do  from 
comparatively  small  districts  scattered  about  the  country,  are 
supposed  to  reflect  pretty  thoroughly  the  will  of  a  democratic 
people.  On  the  other  hand,  they  are  quite  as  likely  to  reflect 
the  passions,  prejudices  and  errors  of  those  whom  they  rep- 
resent. 

Section  2,  Clause  1. — The  House  of  Representatives  shall 
be  composed  of  members  chosen  erery  second  year  by  the 
people  of  the  several  States;  and  the  electors  in  each  State 
shall  have  the  qualifications  requisite  for  electors  of  the 
most  numerous  branch  of  the  State  legislature. 

Representatives'  Term  of  Office. — We  have  said  that  the 
House  of  Representatives,  as  a  legal  assembly,  goes  out  of 
existence  every  two  years.  This  is  by  virtue  of  the  present 
clause,  which  compels  the  election  of  Representatives  every 
second  year.  Members  of  the  British  House  of  Commons 
serve  for  seven  years.     In  America  it  is  not  the  rule  to 


The  Two  Houses  of  Congress  33 

keep  citizens  long  in  political  offices,  but  rather  to  have 
short  terms  and  frequent  elections.  Whether  this  is  a  good 
rule  in  respect  to  the  House  of  Representatives  is  open  to 
question,  but  it  seems  to  have  some  advantages.  Two  years 
is  long  enough  for  a  Representative  to  acquire  a  practical 
knowledge  of  legislative  work,  and  not  sufficiently  long  to 
allow  him  to  lose  his  sense  of  responsibility  to  his  constituents. 
This,  at  least,  seems  to  have  been  the  reason  in  the  Conven- 
tion for  limiting  the  term  to  so  short  a  period.  In  some  of 
the  States  the  same  rule  is  followed ;  in  others  it  is  not.  For 
example,  in  Marjdand  the  delegates  to  the  legislature  are 
chosen  every  two  years;  but  as  the  legislature  of  the  State 
meets  normally  but  once  in  that  period  the  delegates  are  se- 
lected anew  for  every  session. 

Qualifications  of  Electors. — The  House  is  the  popular 
branch  of  the  national  legislature,  for  by  the  Constitution  the 
right  to  select  its  members  rests  solely  with  the  people.  The 
word  electors  in  this  clause  means  voters.  Not  all  the  people 
in  the  States  are  voters,  however ;  hence  not  all  the  people  help 
to  elect  their  Representatives  in  Congress,  but  only  those 
qualified  under  State  laws  to  vote  for  members  of  the  larger 
body  of  their  own  legislatures.  It  has  been  decided  that  Con- 
gress, although  it  may  regulate  such  matters  as  time,  place,  and 
manner  of  conducting  elections,*  may  not  prescribe  any  more 
specific  qualifications  for  voters  in  national  elections  than  this 
clause  contains,*  Since  the  matter  of  suffrage  is  thus  left 
almost  entirely  to  the  discretion  of  the  States,  there  has  arisen 
a  noticeable  lack  of  uniformity  in  the  qualifications  of  those 
persons  who  elect  the  Federal  Representatives,  and  indirectly 
the  President.  Some  States  require  a  property  qualification 
of  their  voters*;  others  require  a  certain  amount  of  educa- 

=  Const.  1,  4,  1.    (See  R.  S.,  23-25.) 
'  Ex  parte  Yarbrough,  110  U.  S.,  651. 
*  Mass.,  Del.,  Penn.,  R.  I.,  Ga. 
3 


34  COXSTITDTIONAL    LaW 

tion';  some  permit  women  to  vote";  and  some  even  allow  the 
ballot  to  unnaturalized  foreigners  after  a  short  residence  in 
the  State/  The  only  positive  restriction  which  the  Constitu- 
tion lays  on  the  States  in  respect  to  suffrage  is  to  be  found  in 
the  15th  Amendment.  It  follows  from  what  has  just  been 
said,  and  from  the  custom  of  choosing  Eepresentatives  from 
separate  districts,  that,  although  the  Constitution  requires 
the  members  of  the  House  to  be  elected  by  the  people,  they  are 
in  fact  chosen  by  a  comparatively  small  proportion  of  the 
whole ;  and  that  those  who  actually  may  assist  in  the  election 
of  a  Representative  are  but  a  fraction  even  of  the  voters  in 
the  State. 

Section  2,  Clause  2. — No  person  shall  be  a  Representa- 
tive who  shall  not  have  attained  to  the  age  of  twenty-five 
years,  and  been  seven  years  a  citizen  of  the  United 
States,  and  who  shall  not,  when  elected,  be  an  inhabitant 
of  that  State  in  which  he  shall  be  chosen. 

Qualifications  of  Representatives. — The  Constitution  de- 
fines in  a  negative  way  the  qualifications  of  national  Repre- 
sentatives. Any  person  not  debarred  by  age,  citizenship,  or 
habitancy  may  aspire  to  the  office.  The  Constitution  does  not 
require  a  Representative  to  be  a  voter,  a  property  holder,  a 
male  citizen,  or  even  an  American-born  citizen,  but  merely  to 
be  a  resident  of  a  State,  twenty-five  years  of  ago,  and  a  citizen 
of  the  United  States  for  seven  years.  To  debar  naturalized 
citizens  from  membership  in  the  House  would  deprive  the 
country  of  the  services  of  many  able  men,  and  since  the  es- 
tablishment of  the  Constitution  many  such  citizens  have  been 
elected  to  that  assembly.  But  before  a  foreigner  can  legally 
become  a  Representative  he  must  have  had  at  least  twelve 

'  Mass.,  Conn.,  Del.,  Miss.,  Wy. 

*  Col.,  Cal.,  Ida.,  Wash.,  Wy.,  Utah,  Kan.,  Ariz.,  Ore. 

'  Ala.,  Ark.,  Ind.,  Kan.,  Mo.,  Neb.,  Ore.,  Tex. 


The  Two  Houses  of  Congress  35 

years'  residence  within  the  United  States — five  years  hofore 
he  can  be  naturalized,  and  seven  years  of  citizenship.  It  has 
been  decided  that  neither  Congress'  nor  the  States  can  chanf^e 
these  qualifications.  Representatives  cannot,  for  example,  be 
required  to  be  freeholders,  or  to  profess  any  religion,  or  to  be 
college  bred,  or  to  be  residents  of  the  districts  from  which  they 
shall  be  chosen. 

Residence. — A  Representative  must,  at  the  time  of  his  elec- 
tion, be  a  domiciled  resident  of  the  State  in  which  he  is 
chosen.  He  need  not  reside  in  the  district  that  elects  him, 
although  people  as  a  rule  prefer  to  choose  one  who  is  domiciled 
among  tiiem.  It  is  thought  that  only  a  person  who  is  familiar 
with  a  district  from  personal  residence  there  can  properly 
represent  it  in  Congress.  It  is  perhaps  from  the  custom  of 
electing  Representatives  from  particular  districts'  that  the 
people  have  come  to  regard  members  of  the  House  as  purely 
local  Representatives,  and  the  latter  often  spend  quite  as  much 
time  and  efl'ort  in  looking  after  petty  affairs  for  their  districts 
as  they  do  in  considering  broader  national  matters.  By  a 
political  fiction  one  who  resides  temporarily  at  a  foreign  court 
as  representative  of  the  United  States,  or  who  is  traveling  or 
sojourning  abroad,  does  not  thereby  lose  his  status  as  resident 
in  his  State,  or  his  national  citizenship.  He  may  on  his  re- 
turn become  a  Representative,  if  duly  elected. 

Since  the  Constitution  does  not  require  a  Representative  to 
reside  in  any  particular  district,  it  follows  that  removal  from 
the  district  after  election  does  not  affect  his  political  status. 
Whether  removal  from  the  State  after  election  would  compel 
a  Representative  to  vacate  his  oflRce  is  still  an  unsettled  ques- 
tion. Although  it  is  a  rule  of  the  common  law  that,  if  a 
person  holding  a  representative  office  remove  from  his  dis- 
trict (State),  he  thereby  vacates  the  office,  it  would  seem  that, 
although  a  Representative-elect  who  should  do  this  ought  with 
good  reason  to  resign  his  otBee,  he  cannot  be  compelled  to  do 


36  Constitutional  Law 

so,  for  the  present  clause  in  the  Constitution  relates  only  to 
time  before  or  at  election,  not  to  time  after. 

Age. — Before  a  man  can  be  a  member  of  the  British  House 
of  Commons  he  must  be  at  least  twenty-one  years  of  age.  This 
is  the  rule  of  membership  in  legislative  assemblies  generally 
throughout  the  United  States,  but  to  be  a  member  of  the 
national  House  of  Representatives  one  must  be  at  least  twenty- 
five.  Few  men  have  had  a  very  extensive  political  experience 
by  the  time  they  are  twenty-five;  hence  the  age  limit  for 
the  important  position  of  Representative  does  not  seem  too 
high.  As  a  matter  of  fact  few  men  enter  Congress  before  they 
are  thirty. 

Note. — The  British  Constitution  does  not  permit  a  foreigner, 
although  naturalized,  to  be  a  member  of  either  House  of  Parlia- 
ment. 

Section  2,  Clause  3. — Representatives  and  direct  taxes 
shall  be  apportioned  among  the  several  States  which  may 
be  included  within  this  Union,  according  to  their  respec- 
tive numbers,  which  shall  be  determined  by  adding  to  the 
whole  number  of  free  persons,  including  those  bound  to 
service  for  a  term  of  years,  and  excluding  Indians  not 
taxed,  three-fifths  of  all  other  persons.  The  actual  enumer- 
ation shall  be  made  within  three  years  after  the  first  meet- 
ing of  the  Congress  of  the  United  States,  and  within  every 
subsequent  term  of  ten  years,  in  such  manner  as  they 
shall  by  law  direct.  The  number  of  Representatives  shall 
not  exceed  one  for  every  thirty  thousand,  but  each  State 
shall  have  at  least  one  Representative;  and  until  such 
enumeration  shall  be  made,  the  State  of  New  Hampshire 
shall  be  entitled  to  choose  three;  Massachusetts,  eight; 
Rhode  Island  and  Providence  Plantations,  one;  Connecti- 
cut, five;  New  York,  six;  New  Jersey,  four;  Pennsyl- 
vania, eight;  Delaware,  one;  Maryland,  six;  Virginia, 
ten;  North  Carolina,  five;  South  Carolina,  five;  and 
Georgia,  three 

Equal  Apportionment. — It  is  a  principle  of  republican  gov- 
ernment that  the  people  shall  bear  the  burdens  of  the  govern- 


The  Two  Houses  of  Congress  37 

merit  equally,  if  possible,  and  share  equally  in  the  blessings. 
People  like  to  elect  Representatives,  or  like  to  be  such  them- 
selves; they  do  not  like  to  pay  taxes.  With  a  delicate  sense  of 
justice  therefore  the  Constitution  declares  that  Representa- 
tives and  direct  taxes  shall  be  apportioned  among  the  people. 
By  "  their  respective  numbers  "  is  obviously  meant  the  popu- 
lation of  the  several  States. 

"Three-Fifths  of  All  Other  Persons."— The  so-called 
"  Three-Fifths  Rule  "  is  now  but  a  historical  curiosity,  for  the 
present  clause  in  the  Constitution  has,  since  July  21,  1868, 
been  superseded  by  the  14th  Amendment,  which  omits  the 
phrase  "  three-fifths'  of  all  other  persons."  It  begins  thus : 
"  Representatives  and  direct  taxes  shall  be  apportioned  among 
the  several  States  according  to  their  respective  numbers,  count- 
ing the  whole  number  of  persons  in  each  State,  excluding 
Indians  not  taxed."  But  when  the  Constitution  was  adopted 
the  people  of  many  States  were  slave  holders,  who  naturally 
desired  to  have  their  slaves'  count  in  the  census,  for  a  State's 
representation  in  Congress  increased  with  its  population. 
Other  States  objected  to  this,  on  the  ground  that  slaves  were 
in  reality  property  and  not  citizens.  The  agreement  finally 
to  count  three-fifths  of  the  slaves  in  determining  the  census 
of  a  State  was  one  of  the  many  compromises  reached  by  the 
Convention,  in  which  the  slave-holding  States  got  a  little  the 
better  of  the  argument. 

"Indians  Not  Taxed." — Indians  once  were  numerous;  to- 
day they  form  but  an  inconsiderable  part  of  the  population.  As 
tribes  they  have  never  had  any  political  status,  their  relation  to 
the  government  being  that  of  ward  to  guardian,  and  for  this 
reason  they  have  never  been  subject  to  taxation  or  reckoned  as 
part  of  the  population.  They  can  not  sue  or  be  sued  in  the 
Federal  courts.  There  is  nothing,  however,  to  prevent  in- 
dividual Indians  from  adopting  the  ways  of  civilization  and 
acquiring  a  political  status;  that  is,  becoming  citizens  with  all 


38  Constitutional  Law 

tlie  rights  and  privileges  tliereunto  pertaining,  and  many  have 
done  so,"  An  Indian  who  lias  hccome  a  citizen  is  of  course 
subject  to  taxation,  and  he  may  acquire  the  riglit  to  vote. 

Apportionment  of  Representatives. — The  present  method 
of  apportioning  Representatives  among  the  respective  States 
has  been  used  since  1850.  It  is  as  follows:  Congress  first 
decides  upon  the  number  of  Eepresentatives  desired.  This 
number  is  then  divided  into  the  entire  population  of  the 
country,  and  the  quotient  is  taken  as  the  basis  of  representa- 
tion. The  population  of  each  State  is  then  divided  by  this 
number  as  a  common  divisor  to  get  the  number  of  Repre- 
sentatives allowed  to  it.  If  tlie  sum  of  the  quotients  thus  ob- 
tained does  not  equal  the  number  of  Representatives  which 
Congress  has  deemed  requisite — and  it  rarely  does — an 
additional  member  is  allotted  to  each  of  the  States  having  the 
largest  remainders,  until  the  required  number  is  reached. 

The  Constitution  required  tlie  census  to  be  taken  within 
three  years'  after  the  first  meeting  of  the  Congress  of  the 
United  States.  It  was  in  fact  made  in  1790.  Since  then  it 
has  been  made  at  the  beginning  of  every  decade,  and  with 
every  new  enumeration  of  the  people  Congress  has  made  a  new 
apportionment  of  Representatives.  The  thirteenth  census  was 
taken  in  1910.  The  Congress  that  was  in  session  at  the  com- 
pletion of  the  task,  the  62 d,  fixed  the  number  of  Representa- 
tives for  the  decade  beginning  with  March  3,  1913,  at  433, 
the  basis  of  representation  being  211,877.  This  number 
was  apportioned  among  the  States  as  follows:  Alabama  10, 
Arkansas  7,  California  11,  Colorado  4,  Connecticut  5,  Dela- 
ware 1,  Florida  4,  Georgia  12,  Idaho  2,  Illinois  27,  Indiana  13, 
Iowa  11,  Kansas  8,  Kentucky  11,  Louisiana  8,  Maine  4,  Mary- 
land 6,  Massachusetts  16,  Michigan  13,  Minnesota  10,  Missis- 
sippi 8,  Missouri  16,  Montana  2,  Nebraska  6,  Nevada  1,  New 

*  See  24  Stat,  at  Large,  390;  30  Stat,  at  Large,  513,  518;  31  Stat. 
at  Large,  1447. 


The  Two  Houses  of  Congress  39 

Hampshire  2,  Now  Jersc}^  12,  Xow  York  43,  Xortli  Carolina 
10,  \orth  Datcota  3,  Ohio  22,  Oklahoma  8,  Oregon  3,  Pennsyl- 
vania 36,  Rhode  Island  3,  South  Carolina  7,  South  Dakota  3, 
Tennessee  10,  Texas  IS,  Utah  2,  Vermont  2,  Virginia  10, 
^\'aslliugton  5,  West  Virginia  G,  Wiseonsin  11,  Wyoming  1. 

The  same  act  provided  that  Arizona  and  Xew  Mexico, 
which  then  were  Territories,  should,  if  admitted  as  States 
within  the  decade,  be  allowed  one  Representative  each  in  Con- 
gress.   This  has  since  taken  place. 

The  Constitution  csta1)lishcd  the  number  of  Representatives 
for  the  first  Congress  by  stating  how  many  each  State  should 
be  entitled  to  choose  until  the  first  census  could  be  taken.  It 
is  interesting  to  compare  the  representation  allotted  then  to 
the  original  thirteen  States  respectively,  and  the  number 
apportioned  to  the  same  States  for  the  decade  beginning  with 
1913,  after  one  hundred  and  twenty-three  years  of  growth. 
For  comparison  the  two  apportionments  are  printed  herewith : 

1790  1913 

New  Hampshire  3  2 

Massachusetts   8  16 

Rhode  Island 1  3 

Connecticut    5  5 

New  York  6  43 

New  Jersey    4  12 

Pennsylvania  8  36 

Delaware 1  1 

Maryland 6  6 

Virginia 10  10 

North  Carolina  5  10 

South  Carolina   5  7 

Georgia   3  12 

From  this  list  it  is  obvious  that,  while  certain  States,  par- 
ticularly New  York  and  Pennsylvania,  have  tremendously  in- 
creased their  representation  in  the  House,  other  States  have 
not  increased  at  all,  and  one,  New  Hampshire,  has  even  lost 


40  Constitutional  Law 

a  member.  Population  in  that  State  has  not  kept  pace  with 
the  increase  in  the  basis  of  representation. 

How  Territories  are  Represented. — Although  States  are 
allowed  representation  in  the  House  according  to  their  popu- 
lation, Territories  are  allowed  but  a  single  delegate,  regardless 
of  population.  This  official  occupies  a  peculiar  position  in 
Congress.  He  is  entitled  to  membership  on  certain  com- 
mittees, particularly  such  as  are  concerned  with  Territorial 
business,  and  he  has  the  privilege  of  the  floor,  that  is,  he  may 
address  the  House,  but  he  has  no  vote.  At  present  (1913) 
Alaska  and  Hawaii  have  each  such  a  delegate  in  Congress. 
Porto  Rico  sends  a  resident  commissioner  to  the  United  States, 
who  represents  the  island  in  its  transactions  with  the  Federal 
government,  but  who  has  no  connection  with  Congress. 

Eepresentative  at  Large. — ^TJntil  June  25,  1842,  States' 
elected  their  Representatives  to  Congress  by  general  ticket; 
that  is,  all  the  electors  in  a  State  had  the  right  to  vote  for  all 
the  State's  Congressional  candidates  at  a  general  election.  In 
that  year  Congress  enacted  that  Representatives  should  be 
chosen  by  districts  of  contiguous  territory  within  the  re- 
spective States  corresponding  in  number  with  the  Represen- 
tatives. The  rule  thus  established  has  been  followed  ever 
since.  The  work  of  dividing  the  States  into  districts  falls 
upon  the  States'  legislatures,  and  the  only  restriction  placed 
on  them  is  that  the  districts  shall  contain  approximately  the 
same  population.  TJnfler  this'  system  a  State  sending  ten 
Representatives  to  Congress  should  be  divided  into  ten  dis- 
tricts, each  of  which  is  entitled  to  choose  one  Representative. 
I^ow  it  may  happen  that  this  State,  by  virtue  of  a  new  appor- 
tionment of  Representatives,  suddenly  finds  itself  entitled  to 
send  eleven  members  to  the  House  instead  of  ten,  and  the 
legislature  may  fail  to  redistrict  the  State  in  time  for  the  next 
general  election.  What  then?  How  is  the  additional  Rep- 
resentative to  be  chosen?     He  is  elected  by  the  whole  State 


The  Two  Houses  of  Coxgress  41 

regardless  of  districts,  and  is  called  Eepresentative  at  Large. 
Of  course  a  State  entitled  to  but  one  Representative  of  neces- 
sity elects  him  at  large. 

In  the  62d  Congress  there  were  Representatives  at  Large 
from  the  following  States :  Colorado,  Connecticut,  Delaware, 
Montana,  Nevada,  North  Dakota  (2),  South  Dakota  (2), 
Utah. 

Section  2,  Clause  4. — When  vacancies  happen  in  the 
representation  from  any  State,  the  executive  authority 
thereof  shall  issue  writs  of  election  to  fill  such  vacancies. 

Vacancies  in  Office. — Vacancies  may  happen  in  the  repre- 
sentation from  any  State  by  death,  removal,  resignation,  or 
the  acceptance  of  incompatible  offices.  As  the  people  elect 
the  regular  Representatives,  it  is  but  natural  that  they  should 
have  a  voice  in  the  matter  of  filling  vacancies  in  office  when 
they  occur.  Consequently,  in  such  a  case,  the  Governor  of  the 
State  has  no  power  of  appointment,  although  a  different  rule 
may  obtain  in  respect  to  vacancies  in  the  Senate.  His  duty  is 
to  call  a  special  election  in  the  district  concerned,  or  in  the 
whole  State  in  the  case  of  a  Representative  at  Large,  by  issuing 
a  writ  of  election.  This  is  a  formal  notice  to  the  people  of  the 
existence  of  the  vacancy,  commanding  them  to  meet  together 
on  a  certain  day  for  the  purpose  of  choosing  some  one  for  the 
vacant  office.  It  is  customary  for  the  House,  when  a  vacancy 
occurs,  to  notify  the  Executive  of  the  State  concerned ;  but  it 
is  sufficient  notice  if  he  receives  the  resignation  of  the  member. 
Whoever  is  elected  to  fill  the  vacancy  serves  for  the  rest  of 
the  term. 

Section  2,  Clause  5. — The  House  of  Representatives  shall 
choose  their  Speaker  and  other  officers,  and  shall  have  the 
sole  power  of  impeachment. 


42  COXSTITUTIOXAL    LaW 

The  Speaker. — The  Speaker  is  chosen  by  ballot  at  the  be- 
ginning of  every  term  of  Congress  from  the  list  of  Repre- 
sentatives, and  is  the  only  Representative  to  hold  special  office. 
His  general  duties  are :  to  preside  over  the  deliberations  of  the 
House ;  to  appoint  all  special  ^  committees ;  to  vote  in  case  of 
a  tie,  although  he  may  do  so  on  other  occasions ;  and  to  sign  all 
bills  and  joint  resolutions.  Next  to  the  President  the  Speaker 
holds  the  most  important  and  powerful  office  under  the  gov- 
ernment, for  his  position  allows  him  to  wield  considerable 
influence  on  legislation.  The  title  of  Speaker  originated  in 
the  time  when  the  legislature  was  addressed  in  person  occa- 
sionally by  the  chief  executive  of  a  nation,  and  the  presiding 
officer  of  the  assembly  was  expected  to  reply.  This  custom 
long  ago  fell  into  disuse,  but  the  name  remains. 

Other  Officers  of  the  House. — The  other  officers  of  the  House 
are  the  clerk,  the  doorkeeper,  the  sergeant-at-arms,  and  the 
postmaster.  These  are  not  Congressmen.  The  office  of  clerk 
is  of  considerable  importance,  and  involves  much  labor.  The 
clerk  calls  the  rolls,  reads  the  minutes'  and  the  almost  countless 
bills  presented  to  the  House,  and  presides  at  the  opening  of 
each  subsequent  Congress.  An  ex-member  of  Congress  is 
sometimes  appointed  clerk.  The  duties  of  the  other  officers 
are  obvious'. 

Impeachment. — Impeachment  in  legislative  bodies  corre- 
sponds in  general  to  indictment  in  criminal  procedure.  Tech- 
nically, it  is  a  written  accusation  made  by  the  House  of  Rep- 
resentatives of  the  United  States  (or  of  a  State)  to  the  Senate 
of  the  United  States  (or  of  a  State)  against  a  civil  officer,** 
charging  him  with  misdemeanor  in  office.  The  accusation  is 
directed  to  the  Senate,  because  that  body  is  the  court  before 

*  Until  1911  the  Speaker  appointed  all  regular  standing  com- 
mittees. In  that  year,  at  the  beginning  of  the  62d  Congress,  the 
House  adopted  a  rule  requiring  all  such  committees  to  be  elected 
by  the  members  of  the  body.    (House  Rules,  Sec.  661.) 

'"  Military  and  naval  officers  are  tried  by  courts  martial. 


Ttte  Two  TTouses  of  Conoress  43 

which  the  officer  must  be  tried.  Briefly,  the  method  of  im- 
])caching  a  man  is  as  follows:  The  Speaker  first  appoints  a 
s])('cial  committee  to  investigate  the  conduct  of  the  officer. 
It"  the  report  of  the  committee  is  in  favor  of  impeachment  the 
House  draws  up  the  necessary  articles  embodying  the  specific 
charges  on  which  the  accused  is  to  be  tried,  and  a  special  com- 
mittee is  then  appointed  to  prosecute  the  case  before  the 
Senate.  (For  further  treatment  see  pages  52-53,  184, 
198-200.) 

Section  3,  Clause  1. — The  Senate  of  the  United  States 
shall  be  composed  of  two  Senators  from  each  State,  chosen 
by  the  legislature  thereof,  for  six  years;  and  each  Senator 
shall  have  one  vote. 

The  17th  Amendment,  adopted  in  1913,  rendered  this  sec- 
tion of  the  Constitution  void.  For  the  sake  of  historical  in- 
terest, however,  it  may  be  worth  while,  in  passing,  to  discuss 
briefly  the  old  method  of  electing  Senators. 

Equality  of  Representation. — Previous  to  the  adoption  of 
the  17  th  Amendment  the  House  might  be  said  to  represent  the 
people  in  Congress ;  the  Senate,  to  represent  the  States.  SucU 
at  least  was  the  thought  in  the  Convention.  Prior  to  the 
adoption  of  the  new  Constitution  practical  equality  had  existed 
among  the  States,  for  in  the  old  Continental  Congress  each 
had  but  one  vote  on  any  question,  no  matter  how  many  dele- 
gates it  furnished.  Xaturally  the  smaller  States  M'ished  the 
same  rule  to  hold  under  the  Constitution;  naturally  the  larger 
ones  did  not.  The  Convention  finally  compromised  by  pro- 
viding that  the  States  should  be  represented  in  the  House 
according  to  their  respective  numbers,  but  equally  in  the 
Senate.  Accordingly,  each  State  was  allowed  to  send  two 
Senators  to  the  national  Congress,  and  each  Senator  had  a 
Yote.  Thus  in  both  Houses  voting  was  now  done  by  indi- 
viduals, no  longer  by  States. 

How  Senators  were  Elected. — The  student  should  remember 


44  COXSTITCTIOXAL   LaW 

this  important  difference  between  the  mode  of  electing  Sena- 
tors previous  to  the  17th  Amendment,  and  that  of  electing 
Representatives:  the  former  were  chosen  by  States'  legisla- 
tures; the  latter,  by  the  people.  The  first  method  is  called 
indirect;  the  second,  direct.  Now  the  Constitution  nowhere 
specifies  in  what  manner  the  legislatures  of  the  States  should 
choose  Senators  for  the  United  States  Congress,  and  for  many 
years  there  was  little  uniformity  in  the  methods  used.  In 
1866,  however,  Congress,  by  virtue  of  the  power  conferred 
upon  it  in  Article  1,  Section  4,  Clause  1,  of  the  Constitu- 
tion, prescribed  the  following  mode."  Each  House  of  any 
State  legislature  that  should  be  chosen  next  preceding  the 
expiration  of  the  time  for  which  a  Senator  from  that  State 
was  elected  should,  on  the  second  Tuesday  after  its  first 
meeting  and  organization,  name  one  candidate  for  United 
States  Senator.  The  members  of  each  House,  in  this  case, 
were  to  vote  openly,  viva  voce,  and  the  number  necessary  for 
choice  was  a  majority  of  those  present.  The  name  of  the 
candidate  thus  chosen  by  each  House  was  required  to  be 
entered  on  the  journal,  and  if  either  House  failed  to  select  a 
candidate,  that  was  likewise  entered.  At  noon  on  the  follow- 
ing day  the  two  Houses  were  required  to  meet  in  joint 
assembly,  and  if  it  appeared  from  the  journals  that  the  same 
man  had  been  selected  for  Senator  by  each  House,  that  person 
was  duly  declared  elected.  If,  however,  the  two  Houses  had 
not  chosen  the  same  person,  or  if  one  or  both  failed  to  present 
a  candidate,  then  they  were  required  to  vote  in  joint  assembly 
at  least  once  a  day,  until  they  should  succeed  in  selecting  a 
Senator.  In  this  case  a  majority  of  each  House  was  required 
to  be  present,  and  of  these  a  majority  was  sufficient  to  elect. 
The  voting  was,  as  before,  viva  voce.  The  Governor  had  noth- 
ing whatever  to  do  with  these  elections. 

This  was  the  procedure  when  a  vacancy  was  about  to  occur 

"Revised  Statutes,  15. 


TiiE  Two  Houses  of  Congress  45 

through  the  expiration  of  a  Senator's  term  of  office.  The  same 
steps  were  taken,  of  course,  if  a  legislature,  on  convening, 
found  a  vacancy  already  existing;  and  if  a  vacancy  occurred 
wiiile  the  legislature  was  in  session,  they  proceeded  to  elect 
on  the  second  Tuesday  after  they  had  received  due  notice  of  it. 

The  System  Abused. — The  method  just  explained  was  theo- 
retically a  rather  neat  way  of  getting  men  into  the  United 
States  Senate.  Legislatures  represent  the  people  of  the  whole 
State;  hence  a  legislature's  choice  for  the  Senate  would  be 
peculiarly  representative  of  the  State.  But  in  practice  the 
scheme  came  to  be  altogether  unsatisfactory,  for  it  was  awk- 
ward, cumbersome,  and  open  to  abuse.  Legislatures  were 
sometimes  in  disagreement  (deadlock)  over  elections  for 
weeks.  Meanwhile,  important  business  of  the  State  was  de- 
layed, and  the  vacancy  at  Washington  still  continued. 
Furthermore,  bribery  and  coercion  were  not  unheard  of  in  this 
connection;  and  too  often  a  Senator-elect,  instead  of  being 
representative  of  the  whole  State,  was  in  reality  representative 
of  a  powerful  faction  in  a  State  legislature.  For  these  and 
other  reasons  the  question  of  electing  Senators  by  popular 
ballot  had  long  been  agitated ;  but  it  was  not  until  the  spring 
of  1913  that  the  necessary  amendment  providing  for  such  a 
radical  change  in  the  organic  law  became  a  fact. 

Senatorial  Primaries. — As  illustrative  of  the  general  grow- 
ing demand  for  the  popular  election  of  United  States  Senators 
many  States  had,  previous  to  the  adoption  of  the  17th  Amend- 
ment, passed  primary  election  laws  allowing  the  people  to 
participate  in  a  measure  in  the  selection  of  United  States 
Senators  by  naming  candidates  at  the  gonoral  State  elections. 
These  elections  were  called  Senatorial  primaries.  The  final 
selection  of  the  Senator  in  these  cases  was  reduced  to  a  mere 
form,  for  the  law  usually  made  it  incumbent  on  the  legislature 
to  choose  the  person  for  whom  the  people  had  shown  their 
preference  at  the  polls.  This,  however,  only  scotch'd  the 
snake;  the  17th  Amendment  killed  it. 


46  COXSTITUTIONAL   LaW 

AMENDMENT  17. 

The  Senate  of  the  United  States  shall  be  composed  of 
two  Senators  from  each  State,  elected  by  the  people 
thereof,  for  six  years;  and  each  Senator  shall  have  one 
vote.  The  electors  in  each  State  shall  have  the  qualifica- 
tions requisite  for  electors  of  the  most  numerous  branch 
of  the  State  legislature. 

When  vacancies  happen  in  the  representation  of  any 
State  in  the  Senate,  the  executive  authority  of  such  State 
shall  issue  writs  of  election  to  fill  sucli  vacancies:  Pro- 
vided, That  the  legislature  of  any  State  may  empower  the 
executive  thereof  to  make  temporary  appointments  until 
the  people  fill  the  vacancies  by  election  as  the  legislature 
may  direct. 

This  amendment  shall  not  be  so  construed  as  to  affect 
the  election  or  term  of  oflfice  of  any  Senator  chosen  before 
it  becomes  valid  as  part  of  the  Constit.ition. 

This  amendment  was  proposed  in  the  Plouse  of  Eepresenta- 
tives  in  the  form  of  a  joint  resolution  in  1911.  It  was  suh- 
mitted  to  the  legislatures  of  the  States  in  1913.  Early  in 
1913,  having  received  the  ratification  of  the  necessary  three- 
fourths,  it  became  therewith  an  integral  part  of  the  Constitu- 
tion. 

Effect  on  the  Constitution. — The  17th  Amendment  at  once 
made  void  the  first  clause  of  Section  3,  Article  1 ;  and  so  much 
of  the  second  clause,  as  relates  to  vacancies.  According  to 
this  amendment  United  States  Senators  must  now  be  elected 
by  the  people,  in  the  manner  provided  by  the  Constitution  for 
the  election  of  Representatives;  and  when  vacancies  occur, 
they  also  must  be  filled  by  popular  election,  except  that  a  State 
legislature  may  authorize  its  chief  executive  to  make  tempo- 
rary appointments  to  fill  the  vacancies  until  the  legislature 
provides  for  a  special  election.  In  any  event  the  original 
office  and  the  vacancies  in  it  must  no\v^  be  filled  through  elec- 
tions by  the  people,  and  not  by  State  legislatures  as  heretofore. 

At  this  writing  (1913)  it  is  a  little  too  soon  after  the  enact- 


The  Two  Houses  of  Congress  47 

mPTit  of  tlio  17th  Amondmpnt  for  an  cxtondod  (liscussion.    Wo 
cannot  forecast  the  years  and  say  what  will  be  the  result  of 
such  a  radical  change  in  the  basic  law,  but  there  is  reason  in 
believing  tliat  it  will  redound  to  the  general  good.     If  ever 
there  was  a  valid  reason  for  employing  different  methods  in 
electing  members  to  the  two  Houses  of  Congress,  it  has  no 
great  force  to-day;  and  certainly  it  would  seem  that,  in  a 
rcpul)lican   country,   both   parts  of  a   bicameral   legislature 
should  be  as  nearly  as  possible  representative  of  the  people. 
Section  3,  Clause  2. — Immediately  aftor  they  shall  be  as- 
sembled in  consequence  of  the  first  election,  they  shall  be 
divided  as  equally  as  may  be  into  three  classes.   The  seats 
of  the  Senators  of  the  first  class  shall  be  vacated  at  the 
expiration  of  the  second  year,  of  the  second  class  at  the 
expiration  of  the  fourth  year,  and  of  the  third  class  at  the 
expiration  of  the  sixth  year,  so  that  one-third  may  be 
chosen  every  second  year;   and  if  vacancies  happen  by 
resignation,  or  otherwise,  during  the  recess  of  the  legis- 
lature of  any  State,  the  executive  thereof  may  make  tem- 
porary appointments  until  the  next  meeting  of  the  legis- 
lature, which  shall  then  fill  such  vacancies. 

Classes  of  Senators. — Dividing  the  Senators  into  classes 
was  an  expedient  devised  to  make  the  Senate  a  perpetual  body. 
It  is  not  to  be  inferred  from  this  clause,  however,  that  some 
Senators  serve  only  two  years,  some  four,  and  the  rest  six. 
The  short  terms'  occurred  when  the  Senate  assembled  in  con- 
sequence of  the  first  election,  i.  c,  in  1789,  and  on  the  admis- 
sion of  new  States  to  the  Union.  To  illustrate:  After  the 
first  Congress  was  set  in  operation,  and  the  Senators  had  been 
divided  into  the  three  classes,  the  seats  of  the  first  class  became 
vacant  by  law  in  1791,  two  years  after  tlie  assembling  of  Con- 
gress; the  seats  of  the  second  class  became  vacant  in  1793; 
the  seats  of  the  third  class,  in  179.').  "Mow,  since  the  senatorial 
term  is  six  years,  the  seats  of  the  first  class  again  became 
vacant  in  1797 ;  the  seats  of  the  second  class,  in  1799;  and  the 
seats  of  the  third  class,  in  1801.     On  the  admission  of  new 


48  Constitutional  Law 

States,  however,  it  has  been  necessary  to  assign  the  first  two 
Senators  from  such  States  to  different  classes,  in  order  that 
their  seats  should  not  be  vacant  at  the  same  time;  and  these 
Senators  have  enjoyed  their  offices  for  two,  four,  or  six  years, 
according  to  the  classes  to  which  they  happened  to  be  assigned. 
To  illustrate  again :  The  Senators  from  Ohio  took  their  seats 
in  1803,  and  were  assigned  to  the  first  and  third  classes 
respectively.  Consequently,  the  one  assigned  to  the  first  class 
served  the  full  period  of  six  years,  for  the  terms  of  that  class 
expired  in  1809,  1815,  etc.,  but  the  one  assigned  to  the  third 
class  served  only  four  years,  for  the  terms  of  that  class  expired 
in  1807,  1813,  etc.  Thereafter,  however,  all  the  Senators  from 
that  State  were  entitled  to  the  full  six-year  term. 

Vacancies  in  the  Senate. — These  may  occur  from  resigna- 
tion, death,  removal  from  office,  or  the  acceptance  of  incom- 
patible offices.  In  the  last  case,  the  act  of  accepting  the  in- 
compatible office  creates  the  vacancy  without  further  action 
by  the  Senator.  An  instance  of  this  would  be  the  acceptance 
by  the  Senator  of  the  office  of  United  States  District  Judge. 
The  election  of  a  Senator  to  the  governorship  of  a  State  would 
not  create  a  vacancy  at  once,  for  State  and  Federal  officers 
are  not  strictly  incompatible. 

Since  the  matter  of  filling  vacancies  in  the  Senate  has 
already  been  discussed  under  the  17th  Amendment  it  is  un- 
necessary to  discuss  it  further  here.  The  student  should 
notice  in  particular  that  the  Governor  of  a  State  no  longer  has 
the  power  to  make  temporary  appointments  unless  the  State 
legislature  gives  him  authority  so  to  do. 

Certificate  of  Election. — ^When  a  person  is  duly  elected  to 
the  United  States  Senate  it  is  the  duty  of  the  executive  of  his 
State  to  confirm  the  election  by  giving  him  a  formal  certifi- 
cate, countersigned  by  the  secretary  of  State,  and  stamped 
by  the  State's  seal.  This  he  presents  to  the  president  of  the 
Senate  as  evidence  of  his  lawful  election.     It  is  only  prima 


The  Two  Houses  of  Congress  49 

facie  cvidonre,  however,  since  the  Senate  may  go  hehind  the 
certificate  and  demand  more  evidence  of  the  fact.  This  is  more 
fully  discussed  under  Section  5,  Clause  1,  of  this  Article. 
(See  page  59.) 

Section  3,  Clause  3. — No  person  shall  be  a  Senator  who 
shall  not  have  attained  to  the  age  of  thirty  years,  and 
been  nine  years  a  citizen  of  the  United  States,  and  who 
shall  not,  when  elected,  be  an  inhabitant  of  that  State  for 
which  he  shall  be  chosen. 

Qualifications  of  Senators. — The  qualifications  of  Senators 
differ  from  those  of  Eeprescutativcs  only  in  degree,  the  higher 
requirements  for  admission  to  the  Senate  giving  that  body  a 
slightly  more  exalted  character.  It  is  seemly  that  these  re- 
quirements should  be  higher,  for  the  Senate  now  and  then 
engages'  in  more  serious  business."  What  in  general  has  been 
said  in  previous  pages  concerning  the  qualifications  of  Rep- 
resentatives applies  equally  to  Senators.  Citizens  of  foreign 
birth  are  not  eligible  to  the  United  States  Senate  until  nine 
years  after  their  naturalization — a  limitation  that  is  reason- 
ably certain  to  prevent  any  foreign  government  from  exercis- 
ing an  influence  over  the  conduct  of  affairs  within  the  United 
States. 

Scope  of  Congressmen. — Although  Eepresentatives  and 
Senators  represent  the  States  in  Congress  primarily,  in  a 
larger  sense  they  are  all  national  of^cers,  whose  work  should 
not  be  limited,  individually,  to  legislation  affecting  local  sec- 
tions. They  serve  their  own  States  best  in  Congress  who 
labor  for  the  good  of  the  commonwealth.  State  legislatures, 
however,  have  sometimes  instructed  their  United  States 
Senators  to  work  for  special  objects,  and  the  people  of  certain 
districts  too  often  expect  their  Representatives  to  get  more  or 
less  Federal  patronage  for  them;  but  Congressmen  are  not 

"The    Senate   tries   impeachments,    confirms    Presidential    ap- 
pointments, and  assists  in  making  treaties. 
4 


50  Constitutional  Law 

bound  to  follow  either  the  instructions  of  the  one  or  the  wishes 
of  the  other.  Those  who  do  not  take  this  wide  view  of  their 
duty  are  presumably  guided  by  somewhat  restricted,  personal 
interests. 

Removal  from  the  State. — There  is  nothing  in  the  Constitu- 
tion to  prevent  a  Senator  from  removing  his  residence  after 
election  from  the  State  in  which  he  was  chosen.  It  is  merely 
necessary  that  he  be  an  inhabitant  of  the  State  at  the  time  of 
his  election. 

Section  3,  Clause  4. — The  Vice  President  of  the  United 
States  shall  be  the  President  of  the  Senate,  but  shall  have 
no  vote,  unless  they  be  equally  divided. 

The  Vice  President. — The  Vice  President  is  a  sort  of  Presi- 
dent in  expectancy.  If  the  office  of  President  becomes  vacant 
through  the  death,  resignation,  or  removal  of  its  occupant  the 
Vice  President  at  once  becomes  President.  Although  the  Vice 
President  is  not  a  Senator,  the  makers  of  the  Constitution 
provided  that  he  should  be  President  of  the  Senate,  and  for 
two  very  good  reasons:  1st,  to  give  him  something  to  do, 
since  there  are  no  duties  attached  to  the  office  of  Vice  Presi- 
dent; and  2d,  to  avoid  the  unpleasant  possibility  of  any  one 
State's  obtaining  more  than  its  due  share  of  influence  by  the 
selection  of  one  of  its  representatives  for  the  presidency  of 
the  Senate.  The  Vice  President  himself  has  no  choice  in  the 
matter.  By  virtue  of  the  Constitution  he  must  preside  over 
the  deliberations  of  the  Senate  whether  he  wishes  to  do  so  or 
not,  and  even  though  he  may  be  naturally  unfitted  for  the  task. 

The  United  States  Senate  is  not  the  only  example  of  a 
deliberative  body  whose  presiding  officer  is  in  no  other  sense  a 
member  of  it.  This  is  the  case  in  the  English  House  of  Lords, 
and  in  the  legislatures  of  some  of  the  States.  In  the  latter  the 
Lieutenant-Governor  presides  over  the  State  Senate.  In  Mary- 
land, however,  which  has  no  Lieutenant-Governor,  the  pre- 


TiiK  Two  Houses  of  Congress  51 

siding  officer  of  the  Senate  is  chosen  by  ballot  from  the  mem- 
bers of  that  body. 

Duties  as  President  of  the  Senate. — Unlike  the  Speaker  of 
the  House  the  President  of  the  Senate  wields  no  great  power. 
He  is  virtually  a  figurehead.  The  Senate  makes  its  own  rules, 
elects  its  committees  by  ballot,  and  there  is  but  little  for  the 
presiding  officer  to  do  but  to  maintain  order,  declare  votes,  and 
perform  other  more  or  less  perfunctory  duties.  Even  ques- 
tions of  order  decided  by  him  may  be  appealed  to  the  Senate. 
Furthermore,  the  Constitution  distinctly  limits  his  right  to 
vote,  allowing  it  only  in  case  of  a  tie.  The  chance  to  exercise 
this  right  does  not  happen  very  often,  but  when  it  does  the 
Vice  President  becomes  at  once  a  person  of  considerable  im- 
portance, for  he  has  the  power  single  handed  to  make  or  to 
mar  legislation  of  vast  importance.  With  this  lone  exception 
the  office  of  Vice  President  carries  no  great  influence,  and  for 
this  reason  has  not  been  much  sought  after  by  men  in  public 
life. 

Section  3,  Clause  5. — The  Senate  shall  choose  their  other 
officers,  and  also  a  President  pro  tempore,  in  the  absence  of 
the  Vice  President,  or  when  he  shall  exercise  the  office  of 
President  of  the  United  States. 

Other  Officers. — The  other  officers  here  referred  to  are  a 
secretary,  a  sergeant-at-arms,  a  chaplain,  a  postmaster,  and 
two  doorkeepers.  These  officers  are  not  Senators.  On  the 
other  hand  the  president  pro  tempore  is  a  Senator.  He  is  not, 
however,  appointed  permanently  except  on  the  death  of  the 
Vice  President,  or  on  the  latter's  promotion  to  the  Presidency. 
It  is  customary  for  the  Vice  President  to  vacate  the  presid- 
ing officer's  chair  in  the  Senate  a  few  days  before  the  close  of 
each  session,  in  order  that  the  Senate  may  choose  a  president 
pro  tempore,  who  will  thus  be  in  office  in  case  the  Vice  Presi- 
dent should  in  the  recess  of  Congress  become  President,  or 


52  COXSTITUTIOXAL   LA"W 

become  mentally  or  physically  unable  to  discharge  his  duties. 
But  the  president  pro  tempore  receives  no  additional  salary, 
except  when  he  succeeds  the  Vice  President  in  office  per- 
manently; then  he  gets  the  latter's  salary.  Unlike  the  Vice 
President,  the  president  pro  tempore  of  the  Senate  is  not 
restricted  in  his  power  to  vote. 

Section  3,  Clause  6. — The  Senate  shall  have  the  sole 
power  to  try  all  Impeachments.  When  sitting  for  that  pur- 
pose, they  shall  be  on  oath  or  affirmation.  "When  the  Presi- 
dent of  the  United  States  is  tried,  the  Chief  Justice  shall 
preside:  and  no  person  shall  be  convicted  without  the 
concurrence  of  two-thirds  of  the  members  present. 

Impeachment. — It  is  well  that  the  right  of  impeachment 
exists,  for  it  is  a  bulwark  against  possible  oppression  on  the 
part  of  those  in  high  places.  Furthermore,  it  is  eminently 
proper  that  legislatures,  or  other  bodies  than  courts  of  law, 
should  conduct  impeachment  proceedings,  for  the  offenses 
reached  thereby  are  mainly,  though  not  always,"  of  a  political 
or  judicial  nature — abuses  of  trust,  neglect  of  duty,  un- 
warranted assumption  or  high-handed  exercise  of  power — and 
are  not  always  within  the  jurisdiction  of  municipal  courts. 
The  procedure  in  impeachment  cases  is  not  so  intricate  or  so 
technical  as  in  action  before  courts  of  law,  and  there  is  less 
opportunity  therefore  for  offenders  to  escape  conviction  on 
mere  quibbles.  Undoubtedly  the  framers  of  the  Constitution 
got  their  notions  of  impeachment  from  England,  where  from 
time  immemorial  the  House  of  Commons  has  exercised  the 
right  to  impeach  offenders,  the  House  of  Lords  the  right  to 
try  them.  Under  the  Constitution  the  participation  of  the  two 
Houses  of  Congress  is  similar:  the  House  of  Eepresentatives 
is  the  prosecuting  body,  the  Senate  is  the  court  before  which 

"Constitution,  2,  4.     See  p.  198. 


The  Two  Houses  of  Congress  53 

the  case  is  tried.    It  would  not  be  seemly  for  either  assembly 
to  be  both  aecuser  and  court. 

The  Senate  as  a  Court. — While  engaged  in  impeachment 
cases  the  Senate  assumes  the  character  of  a  judicial  tribunal. 
But  it  is  a  peculiar  tribunal.  It  is  at  once  both  judge  and 
jury,  deciding  questions  of  fact  as  well  as  questions  of  law; 
and  as  a  court  it  is  almost  unwieldy  in  size.  The  ordinary 
trial  jury  in  courts  of  law  consists  of  twelve  men,  who  must 
be  unanimous  in  order  to  convict;  whereas  the  Senate  con- 
vened as  a  court  may  consist  of  nearly  a  hundred  men,  and 
conviction  may  be  had  by  a  two-thirds  vote  of  the  members 
present.  This  may  mean  the  full  Senate,  or  only  a  majority, 
the  number  necessary  under  the  law  to  do  business'.  Thus  the 
number  necessary  to  convict  is  always  variable.  How  different 
is  this  from  the  rule  in  courts  of  law,  where  exactness  and 
certainty  are  prerequisite.  In  this  respect  the  procedure  in 
impeachment  trials  is  open  to  criticism;  yet  the  custom  of 
allowing  conviction  on  a  fractional  vote  is  in  itself  wise,  for 
it  is  very  probable  that  a  unanimous  verdict  could  never  be 
obtained  in  such  a  large  body  of  men,  a  body,  furthermore, 
that  is  often  divided  on  purely  party  or  sectional  lines. 

Procedure  in  the  Senate. — \Yhen  the  House  has  presented 
the  articles  of  impeachment— that  is,  the  charge  or  indict- 
ment—to the  Senate,  it  becomes  the  latter's  duty  to  summon 
the  accused  party  to  appear  before  it  on  a  designated  day. 
Wlien  the  accused  appears  he  is  given  a  copy  of  the  charges, 
and  is  allowed  a  certain  time  in  which  to  make  his  answer. 
If  he  denies  the  allegations,  the  prosecuting  committee  from 
the  House  replies  in  writing,  and  states  its  readiness  to  prove 
the  charges  preferred.  The  accused  is  then  furnished  counsel, 
and  the  trial  proceeds  according  to  the  ordinary  rules  of 
law  and  parliamentary  practice.  Should  the  accused  feil  to 
appear  in  answer  to  the  summons,  the  Senate  may  go  on  with 
the  trial  in  his  absence.    This  is  called  an  ex  parte  proceeding." 

"  The  case  of  Judge  Pickering,  1804. 


54  Constitutional  Law 

Ordinarily  the  Vice  President  presides  over  impeachment 
trials,  but  should  the  President  happen  to  be  the  accused 
party,  the  Chief  Justice  of  the  Supreme  Court  presides.  To 
have  the  Vice  President  officiate  in  such  a  case  is  not  deemed 
good  policy  in  view  of  the  fact  that  he  has  an  interest  in  the 
chair  of  the  Chief  Executive. 

Impeachment  in  the  States. — The  constitutions  of  most,  if 
not  all,  of  the  States  provide  for  the  impeachment  of  State 
officers.  The  right  to  impeach  is,  however,  generally  regarded 
as  inherent  in  a  republican  state,  hence  it  is  probable  that  any 
State  legislature  would  have  the  power  to  bring  impeachment 
proceedings  whether  the  constitution  expressly  provided  for 
them  or  not.  In  most  States  the  Chief  Justice  of  the  State 
Supreme  Court  presides  if  the  Governor  is  impeached.  For 
many  years  the  States  of  South  Carolina  and  New  York  re- 
quired a  mixed  tribunal  of  legislative  and  judicial  officers  in 
impeachments.  Impeachment  trials  in  the  States  have  been 
comparatively  rare. 

Section  3,  Clause  7. — Judgment  in  cases  of  impeachment 
shall  not  extend  further  than  to  removal  from  office,  and 
disqualification  to  hold  and  enjoy  any  office  of  honor,  trust 
or  profit  under  the  United  States:  but  the  party  convicted 
shall  nevertheless  be  liable  and  subject  to  indictment, 
trial,  judgment,  and  punishment,  according  to  law. 

Punishment. — In  Great  Britain,  after  conviction  in  a  case 
of  impeachment,  the  House  of  Lords  may  inflict  as  much 
punishment  as  a  court  of  law.  This  is  because  the  Parliament 
was  originally  the  highest  court  of  judicature  in  the  realm, 
and  the  power  of  the  Lords  to  decree  extreme  punishment  in 
cases  over  which  it  has  jurisdiction  has  never  been  taken  away. 
The  Constitution  of  the  United  States,  however,  limits  the 
penalty  which  the  Senate  may  impose  to  "  removal  from  office, 
and  disqualification  to  hold  and  enjoy  any  office  of  honor, 
trust,  or  profit  under  the  United  States."    By  a  later  clause, 


The  Two  Houses  of  Congress  55 

Article  2,  Section  4,  removal  from  office  is,  on  conviction  in 
certain  cases,  made  imperative.  Briefly  then,  one  who  is 
impeached  and  found  guilty  of  the  charge  mvst  be  removed 
from  office;  in  addition,  he  jnaij  be  disqualified  to  hold  that,  or 
any  other  office  under  the  national  government,  at  the  dis- 
cretion of  the  Senate. 

Courts  May  Also  Punish. — Thus  tlie  power  of  the  Senate  to 
punish  in  cases  of  impeachment  is  limited."  But  in  addition 
the  impeached  person  is  liable  to  trial  and  punishment  by  any 
court  of  law  having  jurisdiction  of  the  person  and  the  offense. 
This  of  course  is  an  exception  to  the  principle  that  conviction 
or  acquittal  by  one  established  tribunal  renders  a  second  trial 
for  the  same  offense  impossible."  But  the  f ramers  of  the  Con- 
stitution made  the  exception  arbitrarily  in  order  that  no  man 
should  lightly  escape  a  deserved  punishment  if  guilty  of  an 
offense  against  the  State.  It  is  the  purpose  of  impeachment 
to  purify  the  office;  it  is  the  function  of  the  law  to  punish. 
As  yet,  however,  in  the  history  of  the  United  States,  no  im- 
peached person  has  suffered  further  trial  and  punishment 
according  to  law  for  the  same  offense. 

Office  Under  the  United  States. — Disqualification  to  hold 
and  enjoy  any  office  of  honor,  trust,  or  profit  under  the  United 
States  has  no  bearing  on  the  occupation  of  State  offices.  They 
are  not  offices  under  the  United  States.  It  would  not  be  un- 
constitutional, therefore,  for  a  person  whom  Congress  had 
impeached  and  found  guilty  to  accept  afterwards  the  governor- 
ship of  a  State,  or  any  other  purely  State  office.  In  this  respect 
the  States  and  the  United  States,  it  may  be  seen,  are  separate 
entities,  working  independently  of  each  other. 

"  Nevertheless,  the  power  of  the  Senate  is  absolute  as  far  as  It 
goes,  for  not  even  the  President  can  pardon  one  whom  the  Senate 
has  convicted.    Art.  2,  Sec.  2,  Clause  1,  pp.  181,  184. 

"Constitution,  Amendment  5. 


66  Constitutional  Law 

Section  4,  Clause  1. — The  times,  places,  and  manner  of 
holding  elections  for  Senators  and  Representatives  shall 
be  prescribed  in  each  State  by  the  legislature  thereof;  but 
the  Congress  may,  at  any  time,  by  law,  make  or  alter  such 
regulations,  except  as  to  the  places  of  choosing  Senators. 

The  Control  of  Elections. — At  the  time  of  the  Constitu- 
tional Convention  many  people  argued  that  to  allow  Congress 
in  any  way  to  control  the  elections  of  Congressmen  would  be 
placing  an  arbitrary  power  in  the  hands  of  the  national  legis- 
lature that  might  work  infinite  harm  to  some  States,  or  to  all. 
On  the  other  hand  it  was  clear  that  every  good  government 
should  possess  the  means  for  its  own  preservation,  and  to  grant 
to  the  State  legislatures  the  exclusive  power  to  regulate  elec- 
tions might  result  in  leaving  Congress  to  their  mercy.  The 
Convention  finally  agreed  on  the  sensible  compromise  stated 
in  the  clause  above. 

Acts  of  Congress  Regulating  Elections. — Until  1842  the 
States  appointed  Representatives  and  Senators  in  what  man- 
ner, time,  and  place  they  saw  fit ;  and  there  was  in  consequence 
very  little  uniformity  in  the  matter.  In  1842,  however.  Con- 
gress enacted  a  law  compelling  the  elections  of  Eepresentatives 
to  be  held  in  districts  of  contiguous  territory."  This  was  a 
regulation  as  to  place.  In  1871  Congress  provided  that  all 
votes  for  Eepresentatives  should  be  on  written,  or  printed, 
ballots,  any  law  of  any  State  to  the  contrary  notwithstanding.'* 
Thus  was  the  manner  of  such  elections  determined.  In  1872, 
furthermore.  Congress  regulated  the  time  of  choosing  Eepre- 
sentatives by  making  it  the  same  throughout  the  Union :  viz., 
on  the  Tuesday  after  the  first  Monday  in  November  of  every 
alternate  year."  As  to  the  selection  of  Senators,  Congress 
passed  an  act  in  18GG  to  regulate  the  procedure/"  the  manner 

"  Stat,  at  Large,  5,  491. 
"  R.  S.,  27. 
"  R.  S.,  25. 
*R.  S.,  15. 


The  Two  Houses  of  Congress  57 

of  which  has  already  beon  explained.    The  17th  Amendment 
has,  however,  rendered  that  law  inoperative. 

In  such  ways  as  these  Congress  has  at  various  times  re^^ai- 
Inted  the  time,  manner,  and  place  of  holding  elections  for 
Representatives,  and  the  manner  of  electing  Senators.  The 
purpose  of  these  regulations  has  been  to  make  uniform  the 
methods  of  choosing  men  for  Congress,  and  the}-  have  been 
beneficial  rather  than  harmful.  Power  to  prescribe  in  what 
places  the  elections  of  Senators  should  be  held  was  distinctly 
prohibited  to  Congress  by  the  Constitution,  for  it  was  plainly 
improper  for  Congress  to  have  the  power  to  fix  the  meeting 
places  of  State  legislatures,  and  consequently  to  determine  the 
situation  of  State  capitals. 

Section  4,  Clause  2. — The  Congress  shall  assemble  at 
least  once  in  every  year,  and  such  meeting  shall  be  on  the 
first  Monday  in  December,  unless  they  shall  by  law  appoint 
a  different  day. 

Meetings  of  Congress. — Terms  of  Congress  and  sessions  of 
Congress  are  dili'erent  things.  A  term  of  Congress  consists 
of  two  years,  the  length  of  time  for  which  Ikpresentatives  are 
elected  to  serve.  A  session,  on  the  other  hand,  is  any  assem- 
bling of  Congress  for  legislative  purposes,  whether  for  long 
or  sliort  periods,  whether  at  regular  or  irregular  intervals.  A 
terra  of  Congress  begins  regularly  on  the  4th  of  March  of  every 
alternate  year.  During  every  term  there  must  be  by  law  at 
least  two  sessions,  one  each  year;  and  there  may  be  more. 
Normally,  the  first  regular  session  of  a  Congress  begins  on  the 
first  ]\ronday  in  December  of  the  year  in  which  the  term  begins, 
and  it  lasts  until  some  time  during  the  following  spring  or 
summer.  It  is  of  indefinite  length,  for  it  may  continue 
legally  until  the  time  set  for  the  second  session  to  begin.  The 
second  session  begins  legally  on  the  first  ^londay  in  December 
of  the  following  year  and  closes  by  law  on  the  4th  of  March 
next  ensuing." 

»'  Until  1853  it  was  on  the  3d  of  March. 


58  CONSTTTCTIONAL   LaW 

Congresses  Named  Numerically. — Congresses  are  named  in 
the  order  of  their  terms,  beiiiniiiiig  with  the  1st  in  1789,  Thus 
the  Congress  which  began  on  March  4,  1913,  was  the  83d. 

Special  Sessions. — It  is  obvious  from  Avhat  has  just  been 
said  that  the  two  sessions  of  Congress  convened  in  every  term 
are  of  unequal  length.  The  first  is  always  the  longer,  its 
length  being  determined  by  the  amount  of  business  on  hand. 
The  second  session,  however,  must  close  on  the  -Ith  of  March 
next  ensuing,  unless  adjourned  beforehand  on  motion,  or  by 
Executive  order.  But  the  President  may  call  extra,  or  special, 
sessions  of  Congress,  or  of  either  House  separately,  whenever 
in  his  judgment  the  exigencies  of  the  country  demand  it;  and 
he  may  adjourn  the  two  Houses  should  they  disagree  as  to  the 
time  of  adjournment.^  The  President  has  never  yet  ad- 
journed Congress,  but  he  has  called  many  extra  sessions.  For 
example,  President  Taft  called  an  extra  session  of  Congress 
on  tlie  4th  of  March,  1909,  to  revise  the  tariff;  his  successor. 
President  Wilson,  did  likewise  in  the  spring  of  1913.  An 
extraordinary  session  of  Congress  is  not  limited  to  the  business 
for  which  it  is  convened  ;  it  may  consider  any  business  properly 
within  its  scope. 

"  A  Different  Day." — Under  the  authority  of  this  clause 
Congress  might  appoint  some  other  day  for  its  yearly  assem- 
bling than  the  first  Monday  in  December,  and  for  some  time 
after  the  adoption  of  the  Constitution  it  exercised  its  pre- 
rogative in  this  respect.  But  the  custom  of  meeting  on  the 
first  Monday  in  December  has  now  become  so  fixed  that  it  is' 
unlikely  that  Congress  will  ever  appoint  a  different  day. 

Section  5,  Clause  1. — Each  House  shall  be  the  judge  of 
the  elections,  returns,  and  qualifications  of  its  own  mem- 
bers, and  a  majority  of  each  shall  constitute  a  quorum  to 
do  business;  but  a  smaller  number  may  adjourn  from  day 
to  day,  and  may  be  authorized  to  compel  the  attendance  of 
absent  members,  in  such  manner  and  under  such  penalties 
as  each  House  may  provide. 

«  Constitution,  2,  3. 


The  Two  Houses  of  Congress  59 

Contested  Elections. — Tlie  word  "  returns  "  here  means  the 
eh'ction  reports  made  by  tlic  proper  officials  after  an  election. 
The  correctness  of  these  returns,  the  le<?ality  of  the  election, 
and  the  qualifications  of  the  person  concerned  are  all  matters 
to  be  determined  finally  by  each  House  of  Congress  if  the 
status  of  a  member  is  in  doubt.  Ordinarily,  the  certificate  of 
election  which  the  Representative-  or  the  Senator-elect  brings 
with  him  is  sufficient  to  establish  his  right  to  a  seat.  But 
the  certificate  is  only  prima  facie  evidence  of  the  fact,  and 
each  House  may  demand  other  and  additional  evidence.  All 
doubtful  cases,  accordingly,  are  referred  to  a  standing  com- 
mittee on  elections,  whose  report,  if  accepted,  is  final;  and 
neither  States  nor  courts  have  power  to  re-open  the  question. 
This  power  to  determine  the  fitness  of  members,  and  the 
legality  of  their  elections,  is  generally  inherent  in  legislative 
bodies. 

Quorums. — A  quorum  is  the  number  of  members  of  a  delib- 
erative body  necessary  to  be  present  in  order  that  the  body 
may  transact  legal  business.  Usually  assemblies  determine 
their  own  quorums;  sometimes  they  are  established  by  law. 
Sometimes  a  quorum  is  a  variable  number,  as  in  Congress, 
where  a  majority  in  each  House  is  sufficient;  and  this  may  be 
said  to  be  the  usual  custom  among  assemblies.  Sometimes, 
however,  it  is  a  fixed  number,  as  in  the  British  Parliament, 
where  in  the  House  of  Commons  of  670  members  "^  forty-five 
make  a  quorum,  in  the  House  of  Lords  of  631  members  "*  only 
three  are  necessary.  In  a  few  of  the  States,  likewise,  a  quorum 
is  a  fixed  number. 

The  rule  requiring  a  majority  for  a  quorum  makes  it  im- 
possible for  a  crafty  minority  to  pass  a  bill  by  stealth  or  sur- 
prise, or  to  obstruct  legislation  seriously,  as  might  be  the  case 
if  a  definite  number  below  or  above  a  majority  were  necessary 
for  a  quorum. 

**  Statesman's  Year  Book,  1910. 


60  Constitutional  Law 

Compelling  Attendance. — Under  this  clause  in  the  Consti- 
tution a  smaller  number  than  a  majority  may  meet  and 
adjourn  from  day  to  day,  thus  preventing  the  legal  dissolution 
of  Congress,  and  may  compel  the  attendance  of  absent  mem- 
bers under  such  penalties  as  either  House  may  deem  proper. 
By  a  rule  of  the  House  of  Representatives  fifteen  members, 
including  the  Speaker,  may  compel  attendance.  Under  the 
Articles  of  Confederation  no  such  rule  existed,  and  the  Con- 
gress was  often  idle  for  want  of  a  sufficient  number  to  do 
business. 

When  it  becomes  necessary  to  compel  the  attendance  of 
absent  members  of  either  House  the  sergeant-at-arms  is 
usually  empowered  to  arrest  truant  members  wherever  he  can 
find  them,  and  bring  them  before  the  House  to  which  they 
belong  for  final  action  by  that  body.*^  This,  however,  is  a  pro- 
cedure not  often  invoked. 

Counting  a  Quorum. — Until  the  51st  Congress  only  those 
members  of  either  House  who  voted  on  questions  were  con- 
sidered to  be  constitutionally  present.  That  is,  members 
might  be  in  actual  attendance,  and  might  even  speak  on 
matters  before  the  assembly,  but  unless  they  voted  on  measures 
they  could  not  be  counted  to  make  the  necessary  majority. 
In  this  way  legislation  was  often  impeded  for  want  of  a 
quorum.  During  the  51st  Congress,  however.  Speaker  Reed 
established  the  rule  of  numbering  all  the  members  of  the 
House  who  were  present  in  person  whether  they  voted  or  not. 
Later,  this  right  to  count  a  quorum  was  questioned  rigorously, 
but  the  rule  was  upheld  by  the  Supreme  Court,^'  and  the 
practice  is  now  settled. 

Filibustering. — This  was  the  term  applied  to  the  act  of  a 
member  in  refusing  to  vote,  thus  making  himself  constitu- 
tionally absent,  and  delaying  legislation.    The  word,  however, 

**  House  Rule. 

"  United  States  v.  Ballin,  144  U.  S.,  1. 


The  Two  Houses  of  Congress  61 

has  to-day  a  wider  application,  meaning  any  tactics  whatsoever 
indulged  in  by  members  of  either  House  to  impede  the  passage 
of  an  act.  Thus  the  continual  calling  for  a  yea  and  nay  vote 
on  trivial  matters,  and  the  making  of  unduly  long  speeches 
are  favorite  filibustering  tactics. 

Section  5,  Clause  2. — Each  House  may  determine  the 
rules  of  its  proceedings,  punish  its  members  for  disorderly- 
behavior,  and,  with  the  concurrence  of  two-thirds,  expel 
a  member. 

House  Rules. — To  allow  Congress  to  frame  its  own  rules  of 
procedure,  or  parliamentary  rules,  as  they  are  called,  is  a 
matter  of  common  sense.  Without  this  power  it  might  be  im- 
possible for  the  national  legislature  to  do  business  with 
decency,  deliberation,  and  order.  It  is  customary,  at  the 
opening  of  the  first  session  of  each  Congress,  for  the  House  of 
Eepresentatives  to  adopt  the  rules  in  force  during  the  pre- 
ceding term,  but  later  to  adopt  such  changes  or  additions  as 
the  standing  committee  on  rules  may  recommend.  Until  the 
60th  Congress  the  Speaker  of  the  House  was  regularly  chair- 
man of  this  committee  on  rules,  a  position  that  enabled  him 
to  dominate  the  procedure  of  the  House  to  a  very  large  extent. 
During  that  Congress  a  rule  was  adopted  eliminating  the 
Speaker  from  the  important  position.  The  Senate,  being 
more  in  the  nature  of  a  continuing  body,  has  a  set  of  standing 
rules. 

The  Power  to  Punish. — The  right  to  punish,  even  to  the 
extent  of  ex}x>lling  members,  seems  to  belong  naturally  to 
legislative  bodies.  Without  it,  rules  are  of  little  effect,  and 
chaos  is  likely  to  reign.  The  phrase  "  disorderly  behavior  " 
is  rather  broad.  It  is  generally  understood  to  mean  any  con- 
duct inconsistent  with  the  trust  and  duty  of  a  Congressman, 
whether  during  a  regular  session  of  Congress  or  not.  Con- 
duct to  be  punishable  need  not  amount  to  a  statutory  offense. 
This  power  has  been  sparingly  used,  and  the  punishments  that 


62  Constitutional  Law 

have  been  imposed  have  usually  been  of  a  minor  nature,  such  as 
reprimands,  censures,  loss  of  privileges,  and  small  fines.  On 
the  concurrence  of  two-thirds,  however,  either  House  may 
expel  a  member/'  But  since  expulsion  creates  a  vacancy,  it  is' 
not  impossible  for  the  rejected  member  to  be  returned  to  Con- 
gress by  his  State  to  fill  the  vacancy  thus  created. 

Contempts. — Contempt  is  wilful  disregard  of  a  public 
authority,  or  disobedience  to  it.  That  either  House  of  Con- 
gress may  punish  its  members  for  contempt  is  not  denied,  but 
much  has  been  written  for  and  against  its  power  to  punish 
other  people.  Ordinarily,  no  such  right  exists;  but  when 
either  body,  or  a  part  thereof,  is  acting  in  an  authorized 
judicial  capacity,  such  as  sitting  in  impeachment,  or  con- 
ducting examinations  of  disorderly  behavior,  it  may  lawfully 
punish  even  non-members  who  persist  in  being  unruly,  or  who 
refuse  to  obey  a  summons  or  other  order  of  the  assembly." 
Punishment  for  contempt  is  limited  to  imprisonment,  and  the 
duress  ceases  with  the  adjournment  of  Congress.  In  the 
British  Parliament  each  House  has  unlimited  power  to  punish 
for  contempt;  in  which  respect  Parliament  is  strong  where 
Congress  is  weak. 

Unlawful  Duress. — Should  any  person  be  confined  illegally 
by  an  order  of  either  House,  he  can  obtain  no  redress  except 
by  a  suit  against  the  scrgcant-at-arms  for  executing  an  illegal 
process.  Congressional  members  are  not  liable  in  such  a  case, 
by  virtue  of  Article  1,  Section  6,  Clause  1,  to  wit,  "for  any 
speech  or  debate  in  either  House,  they  shall  not  be  questioned 
in  any  other  place."  " 

^  Members  of  Congress,  not  being  subject  to  impeachment,  can- 
not be  expelled  by  this  method  (see  p.  198,  Note  27). 

"Kilbourn  v.  Thompson,  104  U.  S.,  168  (overruling  Dunn  v. 
Anderson,  6  Wheaton,  204). 


The  Two  ITorsKS  of  CoxonEss  63 

Section  5,  Claiise  3. — Each  House  sliall  keep  a  journal  of 
Its  proceedings,  and  from  time  to  time,  publish  tlie  same, 
excepting  such  parts  as  may  in  their  judgment  require 
secrecy;  and  the  yeas  and  nays  of  the  members  of  either 
House,  on  any  question,  shall,  at  the  desire  of  one-fifth  of 
those  present,  be  entered  on  the  journal. 

The  Journals  of  Congress. — The  journals  of  the  two  Houses 
of  Congress  contain  the  permanent  records  of  the  legislative 
proceedings,  and  are  of  considerable  historic  interest  and 
value.  Although  compelled  by  law  to  publish  these  records 
now  and  then,  either  House  may  at  discretion  omit  from  pub- 
lication all  matter  that  seems  to  require  secrecy.  The  meetings 
of  Congress  are  usually  open  to  the  public,  but  there  is  no  law 
to  prevent  either  assembly  from  holding  its  meetings  behind 
closed  doors,  and  each  does  so  occasionally.  The  Senate  some- 
times goes  into  "  executive  session,"  that  is  secret  session,  to 
consider  treaties  or  confidential  communications  from  the 
President,  such  as  nominations  to  office ;  and  the  House  now 
and  then  closes  its  doors  to  visitors  while  deliberating  matters 
of  especial  importance.  The  records  of  these  secret  meetings 
are  kc]it  in  a  separate  journal. 

Methods  of  Voting. — Voting  in  Congress  is  commonly  viva 
voce,  that  is,  by  acclamation.  But  in  any  case,  if  the  presid- 
ing officer  is  in  doubt  as  to  the  result,  he  may  call  for  a  rising 
vote.  Should  any  member  question  the  correctness  of  the 
chairman's  count  he  may  call  for  a  division  of  the  House,  and 
then  tellers  are  appointed  to  count  the  vote.  On  questions  of 
great  importance,  and  in  all  cases  at  the  desire  of  one-fifth  of 
the  members  present,  the  roll  is  called,  when  each  member 
answers  yea  or  nay,  as  the  case  may  be,  and  all  the  votes  are 
entered  on  the  journal.  Although  this  method  has  the  ad- 
vantage of  putting  a  vote  on  record  and  enabling  the  people  to 
know  just  how  their  representatives  stand  on  certain  ques- 
tions, it  is  often  used  by  a  factious  minority  to  delay  proceed- 
ings and  thus  to  hamper  legislation.    A  member,  for  example, 


64  Constitutional  Law 

moves  to  adjourn;  another  calls  for  a  yea  and  nay  vote  on  the 
motion.  Accordingly,  if  one-fifth  of  the  members  present  are 
found  to  desire  a  yea  and  nay  vote,  the  roll  is  called  and  all 
the  votes  are  entered  on  the  journal — a  proceeding  that  con- 
sumes much  time.  Furthermore,  it  often  happens  that  the 
member  making  the  motion  votes  against  it,  showing  that  he 
did  not  make  it  in  good  faith.  Such  a  motion  is  called  dilatory. 
The  presiding  officer  has  it  in  his  power  to  refuse  to  recognize 
a  member  who  in  his  opinion  is  about  to  indulge  in  dilatory 
tactics. 

Section  5,  Clause  4. — Neither  House,  during  the  session 
of  Congress,  shall,  without  the  consent  of  the  other,  ad- 
journ for  more  than  three  days,  nor  to  any  other  place 
than  that  in  which  the  two  Houses  shall  be  sitting. 

Adjournment. — The  provision  in  this  clause  was  deemed 
necessary  on  account  of  the  division  of  Congress  into  two 
bodies.  The  obvious  purpose  of  it  is  to  prevent  either  House 
from  retarding  the  work  of  legislation  by  adjourning  in- 
definitely, or  to  some  place  remote  from  the  other  House. 

Section  6,  Clause  1. — The  Senators  and  Representatives 
shall  receive  a  compensation  for  their  services,  to  be  ascer- 
tained by  law,  and  paid  out  of  the  Treasury  of  the  United 
States.  They  shall  in  all  cases,  except  treason,  felony, 
and  breach  of  the  peace,  be  privileged  from  arrest  during 
their  attendance  at  the  session  of  their  respective  Houses, 
and  in  going  to  and  returning  from  the  same;  and  for 
any  speech  or  debate  in  either  House,  they  shall  not  be 
questioned  in  any  other  place. 

Compensation. — It  has  always  been  the  policy  of  the  United 
States,  and  of  the  several  States,  to  pay  legislators  a  fair 
compensation.  Under  the  Articles  of  Confederation  the  States' 
paid  their  own  delegates  in  Congress.  The  result  of  this 
arrangement  was  that  some  delegates  were  paid  more  than 
others,  and  certain  States  at  times  failed,  for  financial  reasons, 


The  Two  Houses  of  Congress  65 

to  send  any  delegates  at  all.  It  was  a  wise  policy  for  the  mem- 
bers of  the  Constitutional  Convention  to  decide  that  all 
national  legislators  should  receive  pay  for  their  services,  and 
out  of  the  public  treasury.  On  the  one  hand,  this  enables  the 
government  to  get  the  services  of  many  men  of  high  minds  but 
of  limited  means;  on  the  other,  it  equalizes  the  salaries  and 
enables  Congress  to  be  independent  of  the  States.  The  pro- 
vision that  the  compensation  shall  be  "  ascertained  by  law  " 
places  the  matter  entirely  in  Congress,  away  from  the  possible 
prejudice  and  pride  of  any  section  of  the  country,  and  makes 
it  possible  to  change  the  compensation  to  meet  the  fluctua- 
tions in  the  value  of  money,  and  the  ever-varying  prosperity 
of  the  nation.  True,  it  allows  the  question  of  salary  increase 
to  be  settled  wholly  by  those  who  are  to  be  benefited  thereby; 
yet  this  very  fact  has,  perhaps,  served  to  keep  the  compensa- 
tion within  reasonable  limits.  The  salaries  paid  to  Congress- 
men have  ranged  from  $0.00  per  day  while  the  latter  were  in 
actual  attendance  upon  their  duties,  to  $7500.00  per  year.  At 
present  (1913)  they  receive  $7500.00.  The  Speaker  of  the 
House  and  the  President  of  the  Senate  receive  $12,000.00  each. 

Note. — In  Parliament,  members  of  the  House  of  Lords 
have  always  served  without  pay.  Members  of  the  House 
of  Commons  previous  to  1677  were  paid  small  sums  by 
their  constituencies;  since  then  until  1911  they  also 
served  without  pay.  Since  1911,  however,  they  have  re- 
ceived 400  pounds  annually.  Members  of  the  French  legis- 
lature receive  moderate  salaries. 

Other  Compensation. — Besides  salary,  a  Congressman  re- 
ceives a  certain  allowance  for  clerk  hire,  and  is  allowed  mileage 
at  twenty  cents  a  mile  botli  in  going  and  returning  home  by  the 
shortest  route  each  session.  He  is  also  provided  with  sta- 
tionery and  various  other  necessaries  incidental  to  legislative 
duties,  and  he  has  the  privilege  of  franking  mail  on  official 
business. 


66  Constitutional  Law 

Special  Privileges. — Freedom  from  arrest,  and  absolute 
freedom  of  speech  in  the  halls  of  Congress,  are  by  this  clause 
insured  to  members  in  order  that  their  work  shall  be  reason- 
ably free  from  interruption,  and  that  they  shall  be  able  to  act 
and  to  speak  with  independence.  The  privilege  of  freedom 
from  arrest  has  belonged  to  most  legislative  bodies  since  time 
immemorial ;  but  it  has  been  a  limited  freedom.  So  it  is  with 
Congress.  For  such  indictable  offenses  as  treason,  felony 
(murder,  burglary,  arson,  etc.),  and  for  breach  of  the  peace 
(drunkenness,  rioting,  etc.),  a  legislator  may  suffer  arrest  and 
trial  like  any  other  citizen ;  but  from  the  service  of  all  process 
he  is  free.  Thus  he  cannot  be  compelled  to  serve  on  a  jury, 
or  to  appear  in  court  as  a  witness.  This  rather  slight  im- 
munity, as  well  as  the  larger  freedom  of  speech,  is  extended  to 
all  delegates  from  Territories  as  well  as  to  Representatives  and 
Senators ;  and  it  has  been  held  that  one  who  goes  to  Congress 
duly  commissioned  is  thus  privileged,  even  though  it  after- 
wards appear  that  he  was  not  entitled  to  his  seat.'* 

Immunity  from  arrest  begins,  according  to  one  writer,"  at 
the  moment  of  election,  and  before  the  member  has  been 
sworn  in.  This  freedom  is,  however,  a  personal  privilege,  not 
extending  to  the  member's  family,  or  to  his  property."*  If  a 
Congressman  is  arrested  the  arrest  is  void,  and  the  member 
may  be  freed  on  motion  to  the  court,  or  by  a  writ  of  habeas 
corpus,  or  by  a  warrant  from  the  House  to  which  he  belongs 
when  executed  by  the  proper  authority.  Since  the  arrest  is 
illegal,  the  act  is  a  trespass  for  which  the  parties  making  it 
may  be  proceeded  against  in  a  court  of  law.  It  is  useless  in 
such  a  case  to  plead  ignorance  of  identity,  for  everybody  is 
supposed  to  know  who  arc  the  members  of  either  House  of 
Congress.'* 

^  Dunstan  v.  Halstead,  4  Penn.  L.  J.,  237. 
'^  Jefferson's  Manual,  par.  3. 
'"Story's  Constitution,  862. 
"  Jefferson's  Manual,  4. 


\y  The  Two  IIol'ses  or  Coxgress  fiT 

Freedom  of  Speech. — Tt  is  commonly  said  tliat  in  America 
everybody  has  freedom  of  speech.  But  even  in  this  country 
one  may  not  legally  say  things  in  public  to  the  injury  of  some- 
body else,  for  liberty  is  not  license.  The  expression,  "  freedom 
of  speech,"  however,  has  a  wider  application  in  respect  to 
Congressmen  than  to  other  citizens.  For  whatever  they  may 
say  in  the  course  of  o/ficial  business  in  either  House  they  can- 
not be  questioned  in  any  other  place.  In  tlic  halls  of  Congress 
liberty  of  utterance  is  absolute.  The  presiding  officer  may 
caution  a  member  for  ill-chosen  language,  or  refuse  a  member 
recognition  who  persists  in  slanderous  speech,  but  the  latter 
cannot  be  sued  for  slander  in  a  court  of  law.  As  was  said  in  a 
leading  case,"  "  defamatory  words  uttered  in  debate,  or  in 
the  course  of  official  business,  cannot  be  made  the  ground  of 
judicial  action."  The  privilege  does  not  extend  to  the  volun- 
tary publication  of  matter  by  the  member,"  but  only  to  utter- 
ances made  in  the  course  of  duty  on  the  floor  of  either  House, 
or  in  committee  rooms,  or  to  publications  authorized  by  the 
legislature.  In  other  words,  whatever  one  may  do  or  say  as  a 
legislator  he  may  do  or  say  with  absolute  independence,  but  as 
a  private  citizen  he  must  act  and  speak  w'ith  a  more  strict 
regard  for  the  rights  and  feelings  of  other  citizens. 

Section  6,  Clause  2. — No  Senator  or  Representative  shall, 
during  the  time  for  which  he  was  elected,  be  appointed  to 
any  civil  office  under  the  authority  of  the  United  States 
which  shall  have  been  created,  or  the  emoluments  whereof 
shall  have  been  increased,  during  such  time;  and  no  per- 
son holding  any  office  under  the  United  States  shall  be  a 
member  of  either  House  during  his  continuance  in  office. 

Incompatible  Offices. — The  first  part  of  this  clause  has  refer- 
ence to  members  of  Congress  only;  the  last  part  to  holders  of 
other  United  States  offices.  The  aim  of  the  first  is  to  prevent 
members  of  Congress  from  resigning  in  order  to  occupy  lucra- 

"  Coffin  V.  Coffin,  4  Mass..  1. 
"  Story's  Constitution,  S66. 


68  Constitutional  Law 

tive  offices  Trhich  they  themselves  have  helped  to  create,  or  the 
emoluments  of  which  they  have  helped  to  increase;  the  pur- 
pose of  the  last  is  to  prevent  members  from  holding  offices 
under  the  United  States  incompatible  with  their  duties  as 
Congressmen.  But  there  is  nothing  to  prevent  an  ex-member 
of  Congress  from  accepting  such  an  office,  for  at  the  expira- 
tion of  his  term  in  Congress  he  is  but  a  private  citizen,  who 
may  aspire  to  any  office  under  the  government;  and  there  is 
nothing  to  prevent  a  Congressman  from  accepting  and  holding 
a  purely  State  office,'^  or  from  holding  another  office  under 
the  United  States  after  his  election  and  before  he  has  taken 
his  seat.  In  other  words,  if  a  member  of  Congress  accepts  any 
civil  office  under  the  government  he  forfeits  his  seat  in  Con- 
gress thereby;  if,  however,  he  is  holding  another  office  at  the 
time  of  his  election,  he  may  continue  in  the  office  until  he 
takes  his  seat  in  Congress,  when  he  must  resign.  Although  the 
Constitution  is  silent  in  this  connection  respecting  State 
offices,  it  would  seem  not  to  be  good  policy  for  a  Senator  or  a 
Representative  to  occupy  a  State  office  long,  for  he  could 
hardly  do  so  without  seriously  impairing  his  efficiency  in  one 
office  or  the  other,  or  in  both. 

A  member  of  Congress  cannot  at  the  same  time  be  a 
judge  of  a  Federal  court,  or  a  member  of  the  President's 
Cabinet,  for  these  are  offices  under  the  United  States.  In  this 
respect  the  rule  in  Great  Britain  is  very  different,  for  there 
the  ministry  is  usually  composed  of  members  of  Parliament, 
and  members  may  hold  other  offices  under  the  government 
likewise.  It  is  a  striking  peculiarity  of  the  United  States 
Constitution  that  it  keeps  the  three  great  departments  of 
government,  executive,  legislative,  and  judicial,  in  the  main 
distmct  and  separate. 

'^Case  of  Senator  David  B.  Hill,  who  continued  to  hold  the 
office  of  Governor  of  New  York  until  Dec.  31,  1891,  though  his  term 
as  Senator  began  March  4,  1891. 


The  Two  Houses  of  Congress  G9 

A  Case  in  Point. — An  interesting  case  illustrative  of  this 
clause  is  that  of  the  Hon.  P.  C.  Knox,  Secretary  of  State 
under  President  Taft.  Mr,  Knox  was  Senator  from  Pennsyl- 
vania in  the  GOth  Confjrcss,  when  that  body  raised  the  salaries 
of  the  President  from  $50,000  to  $75,000 ;  of  the  Cabinet  mem- 
bers from  $8000  to  $12,000;  and  of  Congressmen  from  $5000 
to  $7500.  Before  his  term  had  expired  he  resigned  from  the 
Senate  to  accept  the  position  of  Secretary  of  State,  the  highest 
Cabinet  office.  Before  Mr.  Knox  was  sworn  in  to  the  latter 
office,  however,  the  attention  of  Congress  was  drawn  to  the  fact 
that  he  was  about  to  occupy  an  office  the  emoluments  of  which 
he,  as  Senator,  had  helped  to  increase.  Considerable  dis- 
cussion followed,  but  the  difficulty  was  finally  settled,  and  Mr. 
Knox's  appointment  made  constitutional,  by  reducing  the 
salary  of  the  Secretary  of  State,  during  the  time  that  ^Ir. 
Knox  would  have  served  as  Senator,  to  the  former  basis. 

Section  7,  Clause  1. — All  bills  for  raising  revenue  shall 
originate  in  the  House  of  Representatives;  but  the  Senate 
may  propose  or  concur  with  amendments,  as  on  other  bills. 

Raising  Revenue. — Since  taxation  is  the  most  common 
method  by  which  a  government  obtains  revenue,  the  phrase 
"  raising  revenue "  has  always  been  interpreted  to  mean 
"  levying  taxes."  In  Great  Britain  the  power  to  raise  revenue 
is  in  the  House  of  Commons — and  the  Lords  may  not  even 
amend — and  in  the  several  States  of  the  Union,  as  well  as  in 
Congress,  it  is  in  the  representative  branch  of  the  legislature. 
Thus  in  both  England  and  the  United  States  taxes  are  regu- 
lated, at  least  in  tlieory,  by  the  wliole  people. 

Accordingly,  any  bill,  the  purpose  of  wliich  is  to  create  or 
to  increase  taxation,  or  to  decrease  or  abolish  it,  must  origi- 
nate in  the  House  of  Pepresentatives;  although  the  Senate 
may  propose  amendments,  as  it  may  to  any  other  bill.  But 
all  bills  that  iueidentally  may  produce  revenue  do  not  come 


70  CONSTITUTIOXAL   LaW 

Avithin  the  limitation  of  this  clause.  Bills  to  regulate  the  post- 
ofTiee,  for  example,  to  establish  mints,  to  further  the  sale  of 
public  lands,  and  numerous  others,  all  have  originated  in  the 
Senate.  Although  they  produced  revenue,  they  were  not 
designed  to  tax.  Tariff  bills,  on  the  other  hand,  have  always 
come  from  the  House,  for  one  of  their  clear  purposes  is  to 
raise  money  by  taxation. 

Section  7,  Clause  2. — Every  bill  which  shall  have  passed 
the  House  of  Representatives  and  the  Senate,  shall,  before 
it  become  a  law,  be  presented  to  the  President  of  the 
United  States;  if  he  approve  he  shall  sign  it,  but  if  not 
he  shall  return  it  with  his  objections  to  that  House  in 
which  it  shall  have  originated,  who  shall  enter  the  objec- 
tions at  large  in  their  journal,  and  proceed  to  reconsider 
it.  If,  after  such  reconsideration,  two-thirds  of  that 
House  shall  agree  to  pass  the  bill,  it  shall  be  sent,  together 
with  the  objections,  to  the  other  House,  by  which  it  shall 
likewise  be  reconsidered,  and  if  approved  by  two-thirds  of 
that  House,  it  shall  become  a  law.  But  in  all  such  cases  the 
votes  of  both  Houses  shall  be  determined  by  yeas  and 
nays,  and  the  names  of  the  persons  voting  for  and  against 
the  bill  shall  be  entered  on  the  journal  of  each  House 
respectively.  If  any  bill  shall  not  be  returned  by  the 
President  within  ten  days  (Sundays  excepted)  after  it 
shall  have  been  presented  to  him,  the  same  shall  be  a  law, 
in  like  manner  as  if  he  had  signed  it,  unless  the  Congress, 
by  their  adjournment,  prevent  its  return,  in  which  case 
it  shall  not  be  a  law. 

Majorities. — We  have  already  seen  that  for  either  House  of 
Congress  to  transact  business  a  quorum  must  be  present;  and 
that  a  quorum  is  a  majority.  It  follows  therefore  that  the 
majority  vote  of  the  quorum  is  sufficient,  ordinarily,  to  pass 
a  bill;  that  the  majority  vote  of  the  whole  House  is  not  re- 
quired. But  to  pass  a  bill  over  the  President's  veto  demands' 
a  special  majority,  two-thirds.  Tt  has  lon'j  been  decided  that 
even  this  means  two-thirds  of  a  quorum."     This,  however, 

«9  Law  Rep.,  19G. 


The  Two  TTouses  of  Congress  71 

Confjrcss  seems  to  have  decided  in  aceordanoe  with  the  general 
custom  among  legislative  bodies,  rather  than  in  accordance 
with  tlie  letter  of  the  Constitution. 

The  Veto  Power. — The  act  of  the  President  in  signing  or 
vetoing  bills  is  his  only  participation  in  legislative  business. 
He  may  do  nothing  else  concerning  the  making  of  laws,  except 
to  offer  suggestion  and  advice.  When  a  bill  has  passed  both 
Houses  of  Congress  and  is  presented  to  him,  he  must  either 
sign  it,  or  veto  it  by  sending  it  back  unsigned  to  the  House  in 
which  it  originated,  and  with  his  reasons  therefor ;  or  he  may 
simply  retain  it  in  his  possession  and  give  it  no  further  notice. 
If  he  signs  the  bill,  it  becomes  a  law  by  that  act;  if  he  vetoes 
the  bill,  it  may  still  become  a  law  by  passing  both  Houses 
again  with  the  required  two-thirds  majority;  if  he  simply 
retains  the  bill  in  possession  for  ten  days  without  signing  it, 
by  that  very  fact  it  may  become  a  law,  unless  Congress  should 
forestall  his  signature  by  a  hasty  adjournment.  The  Presi- 
dent's power  to  veto  is  unlimited.  He  may  exercise  it  for  any 
reason,  whether  founded  in  wisdom  or  in  ignorance.  He  can- 
not, however,  veto  one  or  two  items  in  a  bill  and  approve  the 
rest;  he  must  approve  it  or  veto  it  in  entirety. 

This  makes  possible  what  is  known  among  legislators  as 
a  "  rider."  This  is  a  bill,  to  which  the  President  is  known  or 
suspected  to  be  unfriendly,  which  is  made  a  part  of  a  more 
important  measure  that  he  is  known  to  be  friendly  to,  or  which 
is  so  essential  to  the  needs  of  the  country  that  he  is  not  likely 
to  veto  it.  Thus  a  bill  to  increase  the  salaries  of  certain  officers, 
if  attached  to  the  general  appropriation  bill,  is  not  likely  to 
be  vetoed,  for  the  President  cannot  veto  one  without  vetoing 
the  other,  and  the  bill  for  appropriations  is  too  important  a 
measure  to  be  killed,  or  even  seriously  delayed. 

The  veto  power  is  a  check  on  unwise,  hasty  legislation.  It 
is  a  great  power  for  one  man  to  have ;  but  it  is  a  necessary 
power,  and  in  the  hands  of  a  good  man  it  is  a  beneficent  power. 


73  CONSTITCTIOXAL   LaW 

Congress  is  not  infallible  or  omniscient.  It  sometimes  enacts 
unnecessary,  unwise,  and  even  unconstitutional  legislation. 
It  is  well  that  such  legislation  be  checked  somewhere  if 
possible ;  and  where  could  such  a  check  be  better  lodged  than 
in  the  Chief  Executive,  who  as  the  head  of  a  great  nation, 
somewhat  removed  from  sectional  prejudice  and  party  clamor, 
cannot  but  feel  a  great  sense  of  responsibility  to  the  people, 
and  a  desire  to  have  his  administration  clean,  progressive  and 
successful?  The  executive  veto,  however,  has  been  spar- 
ingly used,  and  the  bills  that  Congress  has  passed  over  the 
President's  head  have  been  comparatively  few. 

It  may  be  noted  here  that  while  the  Executive  Department 
is  a  check  on  the  Legislative  Department,  the  Judicial  Depart- 
ment is  a  check  on  both :  for  whatever  Congress  enacts,  and  the 
President  approves,  the  Supreme  Court  may  declare  uncon- 
stitutional and  void. 

The  Pocket  Veto. — All  bills  received  by  the  President  with- 
in ten  days  of  the  probable  adjournment  of  Congress  run  the 
risk  of  failure  by  action  of  law.  If  the  Executive  fails  to  sign 
them  before  Congress  adjourns,  then  by  force  of  the  last 
sentence  of  Clause  3  of  this  Article,  they  cannot  become  laws. 
This  way  of  killing  bills  is  sometimes  called  the  pocket  veto. 
In  effect,  it  is  vetoing  bills  without  having  to  assign  any 
reasons,  and  with  no  possibility  of  their  being  repassed  by  a 
subsequent  two-thirds  vote  of  that  Congress. 

The  Initiative  and  the  Eeferendum. — Congress'  and  the 
State  legislatures  are  the  normal  law  making  bodies  in  the 
United  States.  This  is  in  accordance  with  the  theory  of  popu- 
lar government,  in  which  all  legislative  power  is  vested  in  the 
people's  representatives.  There  is  a  growing  demand,  how- 
ever, for  the  people  to  be  more  immediately  concerned  with 
legislation,  especially  with  State  and  municipal  legislation. 
Accordingly,  some  States  have  authorized  the  voters'  them- 
selves to  propose  laws  by  petition.     For  example:     In  Ne- 


The  Two  Houses  of  Congress  73 

braska  fifteen  per  cent  of  the  voters  in  municipalities  may 
])ropose  ordinances  by  petition,  and  twenty  per  cent  may  coni- 
])el  the  mayor  and  council  to  submit  the  ordinances  to  a 
])opular  vote.  This  power  of  the  people  to  propose  legislation 
is  commonly  known  as  the  initiative.  Under  the  Constitution 
the  initiative  is  impossible  in  respect  to  Federal  laws. 

The  referendum  is  the  corollary  to  the  initiative.  It  is  the 
submission  of  a  proposed  law  to  the  people  for  their  ratification 
or  rejection.  Under  this  system  of  legislation  statutes  and 
ordinances,  however  proposed,  are  of  no  force  until  sanctioned 
by  the  voters.  The  referendum  has  been  in  use  more  or  less 
since  the  Revolution,  especially  among  municipalities.  In  the 
Federal  scheme  of  government  it  is  of  course  unknown. 

The  initiative  and  the  referendum  usually  go  together; 
States  that  have  adopted  one  have  commonly  adopted  the 
other.  Like  the  recall  and  primary  elections,  they  show  that 
the  people  of  the  United  States  are  coming  to  have  a  much 
greater  share  in  the  business  of  governing  than  was  ever  in- 
tended by  the  framers  of  the  Constitution. 

Section  7,  Clause  3. — Every  order,  resolution,  or  vote,  to 
which  the  concurrence  of  the  Senate  and  House  of  Repre- 
sentatives may  be  necessary  (except  on  a  question  of  ad- 
journment) shall  be  presented  to  the  President  of  the 
United  States,  and  before  the  same  shall  take  effect  shall 
be  approved  by  him,  or,  being  disapproved  by  him,  shall  be 
re-passed  by  two-thirds  of  the  Senate  and  House  of  Repre- 
sentatives, according  to  the  rules  and  limitations  pre- 
scribed in  the  case  of  a  bill. 

Purpose  of  Clause  3. — The  purpose  of  this  clause  is  to  pre- 
vent Congress  from  enacting  laws  under  the  name  of  resolu- 
tions, etc.,  without  conforming  to  the  restrictions  in  the 
previous  clause  respecting  bills.  Whatever  Congress  may 
enact,  whether  bill,  resolution,  order,  or  vote,  must,  if  intended 
to  have  the  force  of  law,  be  signed  by  the  President,  or  be 
passed  over  his  veto  by  the  required  majority. 


74  Constitutional  Law 

Resolutions,  Concurrent  and  Joint. — T^csolutions,  as  well 
as  bills,  are  formal  expressions  of  the  will  of  Congress.  If  the 
purpose  of  a  resolution  is  to  bind  the  country  to  some  course  of 
action,  that  is,  to  have  the  force  of  law,  it  is  called  joint,  and 
as  such  must  be  treated  like  a  bill;  if  not,  it  is  called  con- 
current. A  concurrent  resolution  does  not  require  the  signa- 
ture of  the  President.  It  is  commonly  nothing  but  the  formal 
determination  of  Congress  respecting  a  matter  of  minor  im- 
portance, such  as  requesting  the  return  of  a  bill  from  the  Chief 
Executive,  or  directing  the  suspension  of  a  rule  for  the  rest 
of  the  session.  The  joint  resolution,  however,  does  require  the 
signature  of  the  President  to  be  valid,  or  must  be  repassed  by 
a  two-thirds  vote  of  each  House.  This  form  of  resolution  came 
into  being  in  1871,  in  the  House  of  Eepresentatives,  to  dis- 
tinguish between  temporary  and  permanent  enactments,  a 
distinction  that  has  since  been  lost  sight  of.  The  only  appar- 
ent difference  now  between  a  bill  and  a  joint  resolution  is  in 
the  opening  phraseology,  and,  rather  broadly,  in  the  purposes 
for  which  they  are  used.  Ordinary  legislation  takes  the  form 
of  a  bill;  inferior,  incidental,  or  unusual  legislation  may  be 
expressed  in  a  joint  resolution.  The  distinction  is  rather 
refined,  and  the  present  tendency  is  against  the  use  of  the 
latter.  Some  of  the  purposes  for  which  it  has  been  used  are  the 
following:  to  direct  the  printing  of  documents;  to  make 
sundry  appropriations;  to  admit  new  States;  and  to  propose 
amendments  to  the  Constitution." 

Bills,  Public  and  Private. — Bills  (commonly  called  acts) 
are  either  public  or  private.  Public  acts  concern  the  common- 
wealth, or  some  locality  in  it,  rather  than  individuals,  and 
courts  take  judicial  notice  of  them ;  private  acts  relate  rather 
to  individuals,  and  are  not  noticed  judicially  by  the  courts." 

-'  A  resolution  proposing  an  amendment  to  the  Constitution  does 
not  require  the  President's  signature.     See  Art.  5. 
"  That  is,  courts  will  not  accept  them  as  facts  without  proof. 


The  Two  TTocres  of  Coxoress  75 

A  bill  to  establish  a  light  house,  or  to  build  a  l)attlcship,  or  to 
levy  a  tax,  is  public;  a  bill  to  relieve  a  citizen  by  a  pension,  or 
by  removing  political  disal)ilitics,  is  private.  In  number,  the 
})rivate  bills  introduced  into  Congress  each  year  far  outnumber 
the  public  bills.  Both,  however,  as  well  as  joint  resolutions, 
must  go  through  the  same  process  before  becoming  laws. 

Bills  and  Resolutions,  Forms  of. — ^The  following  excerpts 
from  the  enactments  of  the  Gist  Congress  illustrate  the  forms 
(if  public  and  private  bills,  and  of  concurrent  and  joint  reso- 
lutions: 

PuKLic  Act. 

Chapter  152. — An  Act  for  establishing  a  light  and  fog  signal 
station  on  the  San  Pedro  breakwater,  California.^'* 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assevibled,  That  the 
Secretary  of  Commerce  and  Labor  be,  and  he  is  hereby,  authorized 
to  establish  a  light  and  fog  signal  station  on  the  San  Pedro  break- 
water, California,  at  a  cost  not  to  exceed  thirty-six  thousand 
dollars. 

Approved,  February  24,  1911. 

Private  Act. 

Chapter  315.— An  Act  for  the  relief  of  Helen  S.  Hogan.'* 
Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled.  That  the  Secre- 
tfiry  of  the  Treasury  be,  and  he  is  hereby,  authorized  and  directed 
to  pay,  out  of  any  money  in  the  treasury  not  otherwise  appro- 
priated, to  Helen  S.  Hogan,  of  Woodford  County,  Kentucky,  the 
sum  of  three  thousand  dollars,  etc. 
Approved,  March  4,  1911. 

CONCUBBENT  RESOLUTIOJT. 
Resolved  by  the  House  of  Representatives   (.the  Senate  concur- 
ring), That  the  President  of  the  United  States  be,  and  is  hereby, 


•»  Statutes  at  Large,  Vol.  SG,  929. 
•»  Statutes  at  Large,  Vol.  36,  2123. 


76  CONSTITDTIOXAL   LaW 

requested  to  return  to  the  House  the  bill  (H.  R.  25081),  "For  the 
relief  of  Helen  S.  Hogan."  ^ 
Passed,  February  21,  1911. 

Joint  Resolution. 

Making  appropriations  for  the  payment  of  certain  expenses 
incident  to  the  first  session  of  the  Sixty-first  Congress." 

Resolved  hy  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  the  follow- 
ing sums  are  hereby  appropriated,  out  of  money  in  the  Treasury 
not  otherwise  appropriated,  for  purposes  as  follows:  (naming 
them). 

Approved,  April  23,  1909. 

Bills,  Introduction  of;  First  Reading. — Any  member  may 
introduce  into  Congress  as  many  bills  as  he  likes,  and  these 
bills  may  be  drawn  up  by  the  member,  or  by  any  outsider,  who 
may  hand  them  to  a  member  to  be  introduced.  A  public  bill, 
when  entered,  is  laid  on  the  Speaker's  table,  and  the  Speaker 
refers  it  to  the  proper  committee  for  further  consideration ;  a 
private  bill  is  delivered  to  the  clerk  informally,  endorsed  by 
the  member  with  the  name  of  the  committee  to  which  it  shall 
go.  In  each  case  the  clerk  reads  the  title  of  the  bill  to  the 
House.    This  is  the  first  reading. 

The  Committees. — Before  tracing  the  passage  of  a  bill 
through  Congress  it  is  well  to  understand  first  the  work  of  the 
committees.  These  are  small  groups  of  Congressmen,  whose 
duties  mainly  are  to  give  preliminary  consideration  to  bills  as 
they  are  introduced,  and  to  report  to  Congress  only  those 
which  they  deem  worthy  of  possible  passage.  In  the  House  of 
Representatives  are  some  half  hundred  or  more  regular  com- 
mittees, such  as  the  Committee  on  Eules,  the  Committee  on 
Elections,  the  Committee  on  Ways  and  Means,  and  all  are 
chosen  by  the  House  at  the  beginning  of  each  new  Congress. 

*»  Statutes  at  Large,  Vol.  36,  2136. 
"  Statutes  at  Large,  Vol.  36,  182. 


The  Two  Houses  of  Congress  77 

The  Speaker  may,  however,  appoint  select,  or  conference, 
committees  as  the  need  arises  for  them,  and  the  House  may 
resolve  itself  into  what  is  known  as  a  "  Committee  of  the 
Whole."  The  latter  is  usually  done  to  allow  f^reater  freedom 
in  debate :  the  Speaker  leaves  the  chair,  appointing  a  member 
to  take  his  place  temporarily,  the  ordinary  rules  for  parlia- 
mentary discussion  are  suspended,  and  the  entire  assembly, 
like  a  large  committee,  proceeds  to  discuss  the  matter  at  hand 
unhampered  by  any  arbitrary  restrictions.  In  the  Senate  are 
nearly  as  many  committees  as  in  the  House,  although  each  is 
necessarily  composed  of  fewer  members.  These  are  chosen  by 
the  Senate. 

Advantages  and  Disadvantages. — The  chief  advantage  of 
the  committee  system  is  that  it  facilitates  legislation  by  killing 
off  worthless  bills  at  an  early  stage  in  their  existence,  thus 
preventing  waste  of  time  by  the  House  or  the  Senate.  The 
bills  introduced  into  Congress  at  every  session  run  into  the 
thousands,  and  obviously  it  would  be  quite  impossible  for 
either  branch  of  Congress,  as  a  whole,  to  give  adequate  con- 
sideration to  so  many.  Furthermore,  the  system  makes  pos- 
sible some  co-operation  between  the  executive  and  the  legisla- 
tive departments,  for  although  cabinet  members,  for  instance, 
may  not  appear  in  behalf  of  measures  on  the  floor  of  either 
House  of  Congress,  they  may  do  so  before  committees.  On 
the  other  hand  the  system  is  not  wholly  ideal,  for  it  cramps 
debate,  makes  corruption  easier,  reduces  responsibility,  and 
lessens  the  unity  of  Congress  as  a  constructive  body.  It  has, 
however,  been  too  long  in  use  to  admit  of  any  radical  change, 
and,  after  all,  the  advantages  in  it  are  so  positive  that  it  is 
regarded  as  good  as  any  system  that  could  be  devised. 

Work  of  Committees. — The  committee  to  which  a  bill  has 
been  referred  determines  whether  it  shall  come  before  either 
House  for  further  consideration.  Its  determination  in  the 
matter  is  final,  and  its  judgment  cannot  be  questioned.    If  the 


78  Constitutional  Law 

committee  votes  to  drop  the  bill,  it  is  killed  at  once,  for  it  can- 
not be  considered  by  the  legislature  unless  re-introduced  at  a 
subsequent  session.  If  the  committee  reports  it  adversely  to 
the  House,  the  latter  commonly  drops  it  at  an  early  stage.  If, 
however,  the  committee  reports  the  bill  favorably,  it  has  a  good 
chance  of  becoming  a  law,  for  unless  it  has  strong  opponents 
among  the  members  of  Congress  outside  the  committee,  the 
legislature  will  accept  the  recommendation  of  the  committee 
and  pass  the  bill.  It  is  safe  to  say,  however,  that  about  nine- 
tenths  of  the  bills  are  dropped  by  the  committees. 

Consideration  by  the  House ;  Second  and  Third  Eeadings. — 
A  bill  reported  favorably  to  the  House  is  read  a  second  time, 
this  time  in  full,  and  then  placed  on  the  calendar  for  later 
consideration.  When  in  its  proper  time  the  bill  comes  before 
the  legislature  for  discussion,  it  is  said  to  reach  its  third  read- 
ing, this  time  again  by  title,  unless  some  member  demands  a 
full  reading.  Debate  on  the  bill  is  opened  by  the  Speaker's 
asking,  "  Shall  the  bill  pass  ?  "  Debate  may  be  closed  at  any 
time  thereafter  on  the  call  of  any  member  for  "  the  previous 
question."  Vote  is  then  taken.  If  the  bill  is  passed  by  the 
House,  it  is  engrossed,  that  is  written  out  in  full  in  large  hand 
(en  gros),  signed  by  the  Speaker  and  the  clerk,  and  then  sent 
to  the  Senate. 

Consideration  by  the  Senate.— Tn  the  Senate  a  bill  goes 
through  about  the  same  process  as  in  the  House.  It  is  first 
referred  to  the  appropriate  committee,  after  which  it  comes 
before  the  Senate  to  be  voted  on.  If  the  Senate  rejects  the  bill, 
it  is  lost  as  certainly  as  though  it  had  failed  of  passage  in  the 
House.  If  the  Senate  passes  the  bill,  it  is  returned  to  the 
House  where  it  is  at  once  enrolled  on  parchment.  After  this 
it  is  inspected  by  the  Committee  on  Enrolled  Bills,  signed  by 
the  Speaker  of  the  House  and  the  President  of  the  Senate, 
then  transmitted  to  the  President  of  the  United  States. 

Amendments. — Bills,  except  those  for  raising  revenue  (see 
Article  1,  Section  7,  Clause  1)  may  originate  in  either  House 


The  Two  Houses  of  Congress  79 

of  Congress,  and  either  House  may  ofTer  amend ments  to  the 
other's  bills.  When  this  is  done  both  the  original  bill  and  its 
amendments  must  be  returned  to  the  body  in  which  it  origi- 
nated for  consideration  of  the  amendments.  If  the  House  of 
l\epresentatives,  for  example,  accepts  an  amendment  proposed 
by  the  Senate,  the  bill  as  amended  passes  at  once.  But  if  the 
House  does  not  accept  the  amendment,  it  sends  notice  of  the 
fact  to  the  Senate,  leaving  it  to  that  body  to  recede  from  its 
position,  or  to  insist  and  ask  for  a  conference. 

Conferences. — i\rost  disagreements  between  the  House  and 
(he  Senate  over  l)ills,  or  amendments  to  them,  are  settled  in 
conference  by  special  committees  composed  of  members  from 
each  of  the  committees  in  the  House  and  the  Senate  that  con- 
sidered the  bills  in  the  first  place.  Tlie  fate  of  the  measures 
then  depends  almost  entirely  on  the  report  of  the  conference 
committee.  The  latter  may  vote  to  accept  or  to  reject  a  bill, 
or  amendment,  or  it  may  substitute  an  entirely  new  one.  In 
any  case  the  report  must  be  acted  on  by  the  body  in  which  the 
bill  originated.  T^sually,  the  judgment  of  the  conference  is 
accepted,  and  the  bill  assumes  the  form  suggested  by  the  com- 
mittee. 


CHAPTER  III 

THE  POWERS  OF  CONGRESS 
Article  1,  Section  8 


TIIK   rOWHKS  OF  CONGRESS 

Article  1 

The  Congress  shall  have  power — 

Section  8,  Clause  1. — To  lay  and  collect  taxes,  duties, 
imposts,  and  excises,  to  pay  the  debts  and  provide  for  the 
common  defense  and  general  welfare  of  the  United  States; 
but  all  duties,  imposts,  and  excises  shall  be  uniform 
throughout  the  United  States; 

In  General. — Without  power  to  lay  and  collect  taxes  the 
United  States  government  could  not  long  endure.  The  main 
weakness  in  the  Articles  of  Confederation  was  in  the  fact  that 
they  gave  the  government  no  means  of  raising  money.'  It  is 
well  that,  respecting  this  power,  the  Constitution  speaks  in  no 
uncertain  terms. 

Limitations  on  the  Taxing  Power. — It  has  been  aptly  said 
that  tlie  power  to  tax  involves  tlie  power  to  destroy,*  In  order 
that  Congress  may  not  go  to  unreasonable  extremes  in  its 
exercise  of  this  great  power  it  is  limited  in  various  ways.  1st, 
Congress  is  limited  in  respect  to  the  purpose  for  which  it  may 
tax :  to  wit,  "  to  pay  the  debts,  and  provide  for  the  common 
defense  and  general  welfare."  These  purposes  are  broad 
enough  to  cover  all  the  possilile  needs  of  the  government ;  per- 
haps too  broad,  for  much  litigation  has  arisen  over  the  "  gen- 
eral welfare  "  phrase.'  2d.  Congress  is  limited  in  respect  to 
the  manner  in  which  it  may  lay  the  taxes  herein  mentioned. 

'Art.  of  Confederation,  Art.  VIII. 

'Marshall,  C.  J.,  in  McCulloch  r.  Maryland,  4  Wheat.,  316. 
'  It  is  obvious  that  the  purpose  must  be  public  rather  than 
private. 


84  Constitutional  Law 

That  is,  all  taxes  levied  under  the  authority  of  this  clause  must 
be  uniform.*  If  an  import  tax,  for  example,  is  laid  on  hides, 
the  tax  must  be  the  same  for  the  same  class  of  hides  at  every 
port  of  entry  in  the  United  States.  3d.  Congress  may  be  said 
to  be  limited  in  its  taxing  power  by  the  very  plan  of  repre- 
sentative government.  Members  of  the  House  of  Eepresenta- 
tives,  in  which  body  all  Federal  taxation  must  originate,  are 
chosen  for  short  terms.  A  legislature,  therefore,  that  imposes 
an  oppressive  tax,  can  soon  be  superseded  by  one  more  sensible 
of  its  limitations.  Congress  is  not  likely  to  impose  taxes, 
either  directly  or  indirectly,  that  do  not  meet  the  approval 
of  a  majority  of  the  people.  4th,  and  lastly,  Congress  is 
limited  by  a  necessary  respect  for  the  rights  of  the  separate 
States.  Both  the  United  States  and  the  individual  States 
are  supreme  in  the  sphere  of  their  lawful  activities,  and 
neither  may  interfere  with  the  other  by  taxation.  Thus  it  has 
been  held  that  Congress  may  not  tax  a  State  municipal  cor- 
poration, or  its  resources,"  or  the  salary  of  a  State  officer,'  or 
the  process  of  State  courts,^  or  a  railroad  owned  by  a  State.' 
On  the  other  hand,  a  State  cannot  tax  the  salary  of  a  Federal 
officer,'  or  a  national  bank,"  or  land  of  the  United  States 
within  the  borders  of  the  State."  The  two  cases  of  (a)  U.  S.  v. 
E.  R.  Co.,  17  Wall.,  322,  and  (b)  McCulloch  v.  Md.,  4  Wheat., 
316  are  in  point. 

(a)   In  1854  Baltimore  City  loaned  the  B.  &  0.  R.  R.  Co. 
several  million  dollars  secured  by  5;^  bonds.     The  Federal 

*  Compare  with  Art.  1,  Sec.  2,  CI.  3  of  Constitution. 
'  U.  S.  V.  Railroad  Co.,  17  Wall.,  322. 

*  Collector  v.  Day,  11  Wall.,  113. 
^Warren  v.  Paul,  22  Ind.,  276. 

» Georgia  V.  Atkins,  1  Abb.  (U.  S.  Cir.  Ct.),  22. 

*  Dobbins  v.  Commissioners,  16  Peters,  435. 
"  M'Culloch  V.  Maryland,  4  Wheat.,  316. 

"  Van  Brocklin  v.  Tennessee,  117  U.  S.,  151. 


The  Powers  of  Congress  85 

government  brouijlit  suit  against  the  railroad  company  to 
fompcl  the  payment  of  the  internal  revenue  tax  on  these  bonds. 
The  Supreme  Court  held  that  the  tax  was  unconstitutional 
and  void  as  a  tax  on  the  revenues  of  the  municipal  corporation 
of  Baltimore,  Such  a  corporation  is  a  part  of  the  sovereign 
power  of  the  State,  and  neither  it  nor  its  revenues  are  subject 
to  Federal  taxation. 

(b)  The  Bank  of  the  United  States,  incorporated  by  act  of 
Congress,  and  doing  business  in  Philadelphia,  established  a 
branch  bank  in  Baltimore,  Md.  A  statute  in  ^Maryland  re- 
quired all  banks  in  that  State,  not  chartered  by  the  State 
legislature,  to  pay  an  annual  tax  for  the  privilege.  McCulloch, 
agent  for  the  United  States  Bank  in  Baltimore,  refused  to  pay 
the  tax,  and  when  sued  by  the  State,  set  up  as  defense  that  the 
Maryland  statute  was  unconstitutional  in  so  far  as  it  applied 
to  the  Bank  of  the  United  States.  The  court  held :  that  (1)  a 
State  may  not  tax  a  superior  power;  (2)  the  Bank  of  the 
United  States  was  a  fiscal  arm  of  the  government,  hence  not 
to  be  taxed;  (3)  although  a  State  may  not  tax  the  right  of  the 
bank  to  exist,  it  may  tax  personal  property,  building,  etc.,  of 
the  corporation,  like  any  other  private  property  in  the  State. 

Duties,  Imposts,  and  Excises;  Indirect  Taxes. — It  is  prob- 
able that  Congress  would  have  full  authority  to  levy  duties, 
imposts,  and  excises  without  specific  mention  of  them  in  the 
Constitution.  In  the  first  place,  the  word  taxes  includes  any 
financial  charge  imposed  on  the  people  for  support  of  the 
government;  and  in  the  second  place,  the  power  to  levy  taxes; 
is  inherent  in  any  government.  The  enumeration  of  specific 
taxes  here,  however,  avoids  possible  confusion  and  trouble. 
Duties  are  taxes  on  both  exports  and  imports,  but  since  another 
clause  of  the  Constitution  absolutely  prohibits  charges  on  ex- 
ports, the  term  has  become  generally  synonymous  with  im- 
posts, which  are  taxes  levied  only  on  imports.  Excises  are 
taxes  on  the  manufacture,  sale  or  production  of  commodities 


86  Constitutional  Law 

within  the  country,  and  on  the  privilege  of  pursuing  certain 
occupations.  Thus  taxes  on  the  manufacture  or  sale  of  alcohol 
and  cigars,  and  license  fees  for  the  privilege  of  selling  those 
articles  are  excises. 

These  taxes  are  usually  termed  indirect,  because  the  burden 
of  them  is  borne  by  the  ultimate  consumer,  or  by  the  indi- 
vidual patrons,  as  the  case  may  be.  That  is,  the  importing 
merchant  who  pays  a  duty  on  his  goods  adds  enough  to  the 
selling  price  to  cover  that  charge,  and  the  tax  therefore  is 
really  paid  by  those  who  purchase  the  goods.  Likewise,  one 
who  pays  a  license  fee  for  the  privilege  of  conducting  a  busi- 
ness or  profession  may  recoup  on  his  patrons  by  charging  a 
trifle  more  for  his  wares  or  for  his  services. 

Direct  Taxes. — We  have  seen  that  the  taxes  mentioned  in 
the  present  clause  of  the  Constitution  must  be  levied  uni- 
formly. Clause  3,  Section  3  of  the  1st  Article,  however,  says 
that  direct  taxes  must  be  laid  in  proportion  to  the  population. 
What  then  are  direct  taxes?  In  theory  they  are  taxes  paid 
absolutely  by  the  person  to  whom  they  are  assessed.  The 
Constitution  and  the  Supreme  Court,  however,  have  limited 
this  rather  broad  definition.  The  Constitution,  Article  1, 
Section  9,  intimates  that  a  poll,  or  capitation,  tax  is  a  direct 
tax,  and  the  Supreme  Court  has  decided  that  taxes  on  land  and 
on  all  incomes  from  real  or  personal  property  are  direct.^*  The 
Constitution  does  not  say  what  things  may  or  may  not  be 
taxed;  but  when  Congress  levies  a  tax  on  men,  lands  or  in- 
comes, such  a  tax  is  in  its  nature  direct  and  must  be  laid  pro- 
portionally. When  such  a  tax  is  to  be  levied  the  procedure 
is  as  follows :  Congress  first  decides  the  amount  of  money 
to  be  raised,  then  requires  of  each  State  its  respective  quota 
according  to  its  population.  The  tax  is  then  levied  on  the 
people,  if  it  is  a  poll  tax,  or  on  the  land  or  the  houses,  etc., 
according  to  the  terms  of  the  enactment  providing  for  the  tax. 

"Pollock  V.  Trust  Company,  158  U.  S.,  601. 


The  Powers  of  Congress  87 

In  the  history  of  the  United  States  direct  taxes  have  been 
levied  but  five  times:  viz.,  in  1798,  1813,  1815,  1816  and  1861. 
'J'hey  are  decidedly  unpopular,  difficult  of  accurate  apportion- 
ment, and  often  unfair.  They  are  unpopular,  because  they  are 
in  the  nature  of  an  assessment;  hard  to  apportion  with 
accuracy  on  account  of  the  varying,  shifting  population  of  the 
States;  and  they  are  often  unfair,  since  a  State  with  a  large 
population  pays  a  greater  tax  than  a  State  whose  population 
is  less,  although  the  aggregate  wealth  of  the  former  may  not 
be  any  greater  or  so  much.  The  Federal  government  usually 
provides  for  current  expenses  by  indirect  taxes,  i.  e.,  customs, 
excises,  etc.  Until  the  Civil  War  the  greater  portion  of  the 
national  revenue  was  derived  from  customs,  but  since  then  the 
sums  derived  from  excises  and  from  customs  have  been  about 
equal.  The  individual  States,  on  the  contrary,  meet  their 
expenses  by  direct  taxation.  State  officials  determine  the 
amount  of  money  needed  annually,  and  the  counties,  or  dis- 
tricts, then  are  required  to  raise  their  respective  shares.  Thus, 
when  one  pays  a  tax  for  State  or  municipal  purposes  he  pays 
a  specific  sum,  proportionate  to  the  value  of  the  real  or  per- 
sonal property  he  owns. 

Income  Taxes ;  Attitude  of  Supreme  Court. — It  is  interesting 
liere  to  note  briefly  the  diflerent  attitudes  of  the  Supreme 
Court  towards  taxes  on  incomes.  In  1794  the  court  declared 
that  direct  taxes  could  be  levied  only  on  lands  and  on  persons 
(capitation  taxes),  and  for  about  a  hundred  years  that  limita- 
tion was  observed."  In  1880  the  court  ruled  explicitly  that 
a  tax  on  the  income  from  real  or  personal  property  was  not  a 
direct  tax."  The  status  of  income  taxes  was  argued  again, 
however,  in  1894,  and  the  court  held,  overruling  the  former 
decision,  that  such  taxes  were  direct  taxes  within  the  mean- 
ing of  the  Constitution,  and  should  be  laid  according  to  popu- 

"Hylton  V.  U.  S.,  3  Dallas,  171. 
"  Springer  v.  U.  S.,  102  U.  S.,  586. 


88  Constitutional  Law 

lation.'°  Although  this  ruling  was  rendered  by  a  divided  court, 
two  judges  having  filed  strong  dissenting  opinions,  and  al- 
though it  was  not  in  accordance  with  political  economy  and 
the  views  of  many  publicists,  it  settled  the  legal  status  of 
income  taxes  in  the  United  States.  Since  then  direct  taxes 
have  been  held  to  include  taxes  on  incomes  as  well  as  capita- 
tion taxes  and  taxes  on  real  or  personal  property.  (For  a 
further  discussion  of  this  subject  see  Amendment  16,  p.  286.) 
Section  8,  Clause  2. — To  borrow  money  on  the  credit  of 
the  United  States; 

Borrowing  Money. — The  United  States  is  a  corporation,  a 
large  public  corporation,  and  as  such  it  has  the  power  to 
borrow  money.  Ordinarily,  the  government  meets  its  ex- 
penses by  taxation;  but  on  extraordinary  ©ccasions,  such  as 
the  outbreak  of  war,  or  the  undertaking  of  a  great  public 
work  like  the  Panama  Canal,  it  becomes  expedient  to  borrow 
money.  It  might  be  possible  to  meet  such  unusual  burdens  by 
taxation,  but  it  seems  the  better  policy  to  borrow  money  instead. 
To  raise  quickly  a  great  sum  of  money  by  taxation  creates  an 
intolerable  burden  for  the  people ;  to  borrow  it  does  not,  for  it 
is  offered  freely  by  those  who  wish  to  lend ;  and  the  repayment 
of  such  money  may  be  distributed  over  a  long  term  of  years, 
making  the  burden  of  it  thus  fall  little  by  little  on  those  future 
generations  that  may  justly  be  asked  to  share  the  expense  of  the 
war,  or  that  most  enjoy  the  advantages  of  the  public  work. 

United  States  Bonds. — When  the  government  wishes  to 
borrow  money  it  issues  for  sale  what  are  known  as  United 
States  bonds.  These  are  certificates,  or  notes,  in  which  the 
government  promises  to  pay  the  holder  at  a  stipulated  time 
the  sum  named  therein  with  interest  at  a  stated  per  cent. 
These  notes  are  not  money,  nor  are  they  designed  to  circulate 
as  such,  although  they  may  be  assigned,  or  passed  from  hand 
to  hand,  like  any  valuable  commercial  paper.    They  are  cer- 

"  Pollock  V.  Farmers'  L.  &  T.  Co.,  158  U.  S.,  429. 


The  Powers  of  Congress  89 

tificates  of  indebtedness  merely.  The  })urchaser  of  govern- 
ment bonds  becomes  in  fact  a  creditor  of  the  United  States, 
for  he  virtually  lends  to  the  government  the  sum  named  in  the 
certificates.  When  United  States  bonds  are  issued  they  find 
a  ready  sale,  for,  although  they  do  not  pay  a  high  rate  of 
interest,  they  are  regarded  as  absolutely  safe.  In  fact  so 
great  is  the  demand  for  such  notes  that  they  usually  sell 
above  their  face  value.  Bonds  issued  in  1911,  for  the  Panama 
Canal,  bearing  interest  at  only  3  per  cent  sold  as  high  as  102^. 
Government  bonds  usually  find  their  way  into  the  hands  of  the 
people  through  the  large  banking  houses,  such  as  those  on  Wall 
Street,  New  York,  that  usually  purchase  the  issue  at  once  in 
large  blocks. 

"  On  the  Credit  of  the  United  States." — When  one  buys  the 
bonds  of  a  private  corporation  he  runs  the  risk  of  losing  some 
of  his  money,  for  the  assets  of  the  corporation,  should  it  fail, 
may  or  may  not  be  enough  to  reimburse  the  bond  holders. 
Theoretically,  one  who  buys  the  bonds  of  the  corporation 
known  as  the  United  States  runs  a  risk  of  losing  all  of  his  in- 
vestment. Should  the  United  States  become  bankrupt  there 
would  be  no  definable  assets  for  distribution  among  the  bond 
holders,  for  the  bonds  are  issued  on  credit  only,  nor  is  there 
any  court  in  which  suit  for  distribution  could  be  brought.  But 
so  long  as  the  financial  standing  of  the  United  States  remains 
high,  that  risk  is  reduced  to  a  minimum.  In  fact,  bankruptcy 
of  the  United  States  would  be  possible  only  as  the  result  of  a 
disastrous  war,  or  on  account  of  some  tremendous  shrinkage 
of  values,  or  frightful  cataclysm  of  nature. 

Section  8,  Clause  3. — To  regulate  commerpe  with  foreign 
nations,  and  among  the  several  States,  and  with  the  Indian 
tribes; 

The  Need  of  Federal  Regulation. — After  the  Pevolution 
and  before  the  adoption  of  the  Constitution  the  individual 
States  regulated  commerce  about  as  they  pleased,  with  little 
regard  to   the  welfare   of  the  whole   lonmionwealth.     They 


90  Constitutional  Law 

levied  duties  on  imports  and  exports,  both  from  and  to  other 
countries  and  from  and  to  each  other.  Thus  communities 
that  were  favorably  situated  were  able  to  exact  a  revenue  from 
communities  less  favorably  placed.  The  inevitable  confusion 
and  ill  feeling  resulting  from  this  state  of  affairs  finally 
reached  such  a  pass  that  a  convention  of  delegates  from  the 
several  States  was  called  in  1786  at  Annapolis,  Md.,  to  con- 
sider the  problem  of  interstate  trade.  For  lack  of  a  quorum 
the  commissioners  attending  this  convention,  as  told  in  a 
previous  chapter,  entered  into  no  discussion  of  interstate  com- 
merce, but  rather  made  certain  recommendations  regarding 
the  need  of  a  stronger  general  government.  But  the  Constitu- 
tional Convention,  which  met  the  following  year  in  pursuance 
of  those  recommendations,  forever  settled  the  vexed  question 
of  trade  by  placing  commerce  with  foreign  nations,  among  the 
several  States,  and  with  the  Indian  tribes  wholly  in  the  hands 
of  Congress. 

Extent  of  Federal  Regulation. — The  simple  prepositional 
phrase,  "  To  regulate  commerce,"  gave  to  Congress  an  im- 
mense power,  but  a  great  amount  of  litigation  has  been  neces- 
sary to  demonstrate  the  full  extent  of  that  power.  Briefly  the 
phrase  has  been  settled  to  mean :  The  power  to  control  com- 
mercial intercourse  between  nations,  and  parts  of  nations,  in 
all  its  branches  by  prescribing  rules  for  carrying  it  on.  Com- 
merce therefore  is  more  than  traffic;  it  is  intercourse.  It  in- 
cludes navigation;  it  embraces  ships  and  railroads  as  instru- 
ments of  trade,  as  well  as  tlie  men  who  manage  them;  it 
comprehends  both  passengers  and  cargoes,  and  even  telegraphic 
lines  and  messages.  In  the  case  of  the  Pensacola  Tel.  Co.  v. 
Western  Tel.  Co.,  93  U.  S.,  1  (1877),  the  court  said  that  the 
power  of  Congress  to  regulate  commerce  could  not  be  confined 
to  the  instrumentalities  in  use  at  the  time  of  the  adoption  of 
the  Constitution,  but  kept  pace  with  inventions  and  with  the 
growth  of  the  country.    Hence  the  power  of  Congress  extends 


The  Powers  of  Congress  91 

to  all  the  means  wheroby  commerce  between  States  and  with 
other  nations  is  facilitated  ;  it  is  exercised  on  the  ocean  as  well 
as  upon  the  land,  and  on  all  navigable  waters  within  the  United 
States  not  wholly  included  witliin  the  boundaries  of  a  State. 

Intrastate  and  Interstate  Commerce. — Few  things  illustrate 
the  parity  of  powers  held  by  the  United  States  and  the  several 
States  better  than  the  decisions  relating  to  commerce.  Every 
State  may  control  the  commerce  carried  on  wholly  within  its 
borders ;  but  the  commerce  that  enters  a  State  from  without,  or 
that  passes  out  from  within,  is  under  the  exclusive  control  of 
Congress.  A  State  may  regulate  the  traffic  on  a  railroad  that 
lies  wholly  within  the  State,  and  control  the  trade  on  a  navi- 
gable river  or  lake  similarly  situated,  provided  that  the  water 
is  not  directly  connected  with  the  ocean  or  other  highway  of 
ilie  world's  commerce."  A  State  may  likewise  exercise  the 
right  of  eminent  domain  over  the  shores  of  a  navigable  stream, 
if  in  so  doing  it  does  not  hinder  interstate  trade  or  affect 
reciprocal  rights  in  the  Federal  government."  On  the  other 
hand,  a  State  law  granting  the  exclusive  privilege  of  running 
steam  vessels  for  traffic  on  such  a  river  as  the  Hudson  is  un- 
constitutional and  void.  This,  was  decided  as  early  as  1824, 
in  the  famous  case  of  Gibbons  r.  Ogden,  9  Wheaton,  1,  the  facts 
of  which  were  as  follows : 

"The  State  of  New  York  granted  to  E.  R.  Livingston  and 
R.  Fulton  the  exclusive  right  to  navigate  all  or  any  of  the 
waters  within  the  jurisdiction  of  that  State.  Later,  this  ex- 
clusive right  was  assigned  by  Livingston  and  Fulton  to  one 
Ogden,  who  brought  suit  against  Gibbons  for  running  a 
passenger  steamboat  about  New  York  and  on  the  lower  Hud- 
son. Gibbons  set  up  as  a  defense  that  his  boat  was  duly  en- 
rolled and  licensed  under  acts  of  Congress  to  engage  in  the 
coasting  trade." 

"Veazie  v.  Moore,  14  Howard,  568. 
"Oilman  v.  Philadelphia.  3  Wall..  726. 


92  Constitutional  Law 

The  court  held,  that  the  power  of  the  United  States  to  regu- 
late commerce  did  not  stop  at  the  external  boundaries  of  a 
State ;  and  that,  although  a  State  might  enact  reasonable  regu- 
lations for  the  navigation  of  waters  within  its  jurisdiction,  a 
statute  which  purported  to  give  to  any  person  or  corporation 
the  exclusive  privilege  of  navigating  that  portion  of  its  waters 
which  served  for  the  passage  of  commerce  between  the  States 
was  so  unreasonable  a  statute,  and  so  palpably  a  regulation 
of  interstate  trade,  that  it  was'  unconstitutional.  Reasoning 
in  a  similar  way  the  Supreme  Court  later  declared  that  a  State 
law  which  required  importers  to  pay  a  license  fee  of  fifty 
dollars  before  selling  imported  goods  was  void ; "  and  that  a 
license  tax  imposed  by  a  State  on  commercial  agents  coming 
into  the  State  from  without  to  solicit  orders  was  illegal,  even 
though  a  like  tax  was  imposed  on  agents  of  corporations 
dwelling  within  the  State." 

Police  Power  of  a  State. — Although  the  power  of  Congress 
to  regulate  commerce  among  the  States  is,  in  general,  ex- 
clusive, it  is  limited  indirectly  in  the  following  way.  It  has 
long  been  decided  that  the  States,  in  the  exercise  of  protective 
care  over  their  inhabitants,  may  make  and  enforce  local  regu- 
lations, even  though  in  so  doing  they  remotely  affect  interstate 
commerce.'"  This  power  of  the  States  to  protect  the  lives, 
health,  and  property  of  their  citizens,  and  to  preserve  good 
order  and  public  morals,  is  known  as  the  police  power.  Such 
a  power  is  naturally  incident  to  sovereignty  in  any  form,  and 
it  cannot  be  said  ever  to  have  been  surrendered  by  the  States 
to  the  United  States.  Accordingly,  a  State  may  require 
engineers  on  all  railroads  running  within,  into,  or  through  the 
State  to  pass  an  examination  on  eyesight ; "  it  may  regulate 

"  Brown  v.  Maryland,  12  Wheat.,  419. 

'"  Robbins  v.  Shelby  County  Taxing  Dist.,  120  U.  S.,  489. 

'■^  Pervear  v.  Commonwealth,  5  Wall.,  475. 

=^  Smith  V.  Alabama,  124  U.  S.,  465. 


The  Powers  of  Congress  93 

the  sale  of  intoxicating  liquors,  including  liquor  imported ;  ** 
it  may  impose  reasonable  wharfage  rates  along  navigable 
waters,  build  bridges  over  streams,  provided  that  they  do  not 
in  so  doing  stop  all  commerce,  and  may  enforce  rules  for 
pilotage; "  it  may  even  tax  the  property  of  those  corporations 
within  the  State  engaged  in  interstate  commerce;"  it  may 
pass  sanitary,  quarantine,  and  inspection  laws,  and  may  take 
reasonable  precautions  to  keep  out  of  the  State  convicts, 
paupers,  and  all  i)ersons  and  animals  afflicted  with  contagious 
diseases.  But  no  State  may,  under  cover  of  the  police  power, 
enact  legislation  that  substantially  burdens  or  restricts  foreign 
or  interstate  trade."  It  is  not  always  easy  to  say,  in  respect 
to  a  State  law  which  in  some  slight  degree  offers  a  bar  to  inter- 
state commerce,  whether  or  not  it  is  to  be  justified  under  the 
police  power.  In  a  general  way  its  legality  may  be  said  to 
depend  on  its  reasonableness  and  the  actual  necessity  for  its 
existence,  ratlier  ihan  on  any  absolute  rule,  (See  also  p.  280.) 
The  Embargo  Act. — Congress  has  stretched  the  great  power 
to  regulate  commerce  so  far  as  to  prohibit  commerce  altogether. 
This  was  the  effect  of  the  Embargo  Act  of  1807,  which  pro- 
vided that  all  ships  then  in  port,  cleared  or  not  cleared,  should 
stay  there,  and  that  no  vessel  bound  to  a  foreign  port  should 
be  furnished  clearance  papers  except  under  the  immediate 
direction  of  the  President.  The  purpose  of  the  act  was  to 
prevent  traffic  with  other  nations,  and  it  largely  succeeded. 
It  succeeded  so  well  that  exports  in  1808  declined  four-fifths, 
and  foreign  trade  was  at  a  standstill.  So  severe  was  its  effect 
on  the  people  that  it  nearly  drove  New  England  into  a  revo- 
lution.   The  act  was  repealed  in  1809.    It  is  doubtful  if  any 

"  The  License  Cases,  5  Howard,  504. 

"  Gibbons  v.  Ogden,  9  Wheat.,  1.    People  v.  S.  &  R.  R.  R.  Co.,  15 
Wend.  (N.  Y.),  113. 

"  Transp.  Co.  v.  Wheeling,  99  U.  S.,  273. 
»R.  R.  Co.,  V.  Husen,  95  U.  S.,  465. 


94  Constitutional  Law 

other  Congress  will  ever  attempt  to  go  to  the  extent  of  the 
Congress  of  1807  in  the  exercise  of  the  power  to  regulate 
commerce. 

Act  of  1887. — Since  1807  the  most  important  legislation 
passed  by  Congress  for  the  regulation  of  commerce  is  the 
Interstate  Commerce  Act  of  1887.  This  act  was  made  neces- 
sary by  the  growing  tendency  of  certain  great  railroad  lines 
to  control  to  an  unreasonable  extent  the  internal  traffic  of  the 
country'  by  consolidating  their  interests,  thus  putting  them- 
selves in  a  position  to  raise  freight  and  passenger  rates  and  to 
secure  other  unfair  advantages.  Among  other  things  the  act 
provided:  (1)  That  passenger  and  freight  rates  should  be 
reasonable;  (2)  that  there  should  be  no  unfair  discrimination 
between  persons,  corporations  or  places;  (3)  that  the  charge 
for  a  short  haul  should  not  be  greater  than  for  a  long  haul 
under  similar  conditions;  (4)  that  there  should  be  no  pooling 
agreements;  and  (5)  that  there  should  be  created  a  com- 
mission to  supervise  the  administration  of  the  law.  The  com- 
mission created  under  the  law  is  at  present  composed  of  seven 
members,  appointed  by  the  President  and  the  Senate  for  seven 
years,  and  each  is  paid  a  salary  of  $10,000  per  year.  The 
powers  of  the  commission  now  extend  beyond  railroad  and 
steamship  companies  to  include  the  supervision  of  express  and 
sleeping  car  companies,  and  petroleum  pipe  lines.  The  com- 
mission is  organized  like  a  court  of  law  and  holds  sittings  at 
various  places  in  the  United  States.  Although  it  is  not  a  part 
of  the  judicial  system  it  determines  cases  like  a  court :  it  can 
summon  witnesses  and  empower  United  States  marshals  to 
execute  injunctions  and  other  positive  mandates'.  It  has  not 
like  a  court  the  power  to  execute  all  its  findings,  but  its 
decisions  may  form  the  grounds  for  action  by  United  States 
courts,  and  they  are  received  with  great  respect. 

Since  the  passage  of  the  Interstate  Commerce  Act  Congress 
lias   enacted   several   statutes   forbiddiiiir   combinations   and 


The  Powers  of  Coxgress  95 

conspiracies  in  restraint  of  interstate  trade.  Under  these  acts 
any  pooling  or  joining  of  interests,  the  result  of  which  is  to 
create  a  monopoly  or  trust,  is  illegal;  and  this  is  so  even 
though  the  original  purpose  of  such  pooling  was  not  to  stifle 
free  competition.  The  law  looks  at  the  prohahle  result  of  such 
combining,  rather  than  at  the  intent  of  the  participants.  The 
United  States  v.  Freight  Association,  166  U.  S.,  290  (1897), 
is  a  case  in  point.  Eighteen  railroads  running  through  the 
middle  west  formed  an  association  for  the  purpose  of  main- 
taining freight  rates  in  the  region  between  the  Mississippi 
liiver  and  the  Pacific  Ocean.  The  managers  maintained  that 
it  was  not  their  purpose  to  increase  rates,  or  to  stifle  competi- 
tion. The  United  States  sued  to  have  the  association  dis- 
solved. The  Supreme  Court,  in  granting  the  petition,  said 
that  the  logical  result  of  such  an  agreement  between  roads  was 
to  create  a  trust,  and  that  since  the  parties  were  engaged  in 
interstate  trade  it  was  illegal  as  a  regulation  of  commerce. 

"  With  the  Indian  Tribes." — That  Congress  should  control 
the  trade  with  the  Indian  tribes  is  but  just.  If  the  regulation 
of  that  traffic  were  left  to  the  several  States,  or  to  corporations, 
or  to  individuals,  the  way  to  sure  abuse  would  be  open.  As 
long  therefore  as  tribal  relations  exist,  or  until  the  race  dis- 
appears, Indians  will  continue  as  wards  of  the  government, 
and  their  political  relations  will  be  defined  by  statutes  and 
treaties."  In  their  domestic  government  they  are  left  to  their 
own  rules  and  traditions,  but  all  commerce,  whether  between 
white  persons  and  Indians,  or  between  different  Indian  tribes 
or  the  individual  members  thereof,  and  whether  upon  reserva- 
tions within  the  Territories  or  the  States,  is  wholly  to  be 
carried  on  under  rules  prescribed  by  Congress."  Neither 
States  nor  individuals  can  jnin-hase  land  fn^n  Indian  tribes 

*•  Cherokee  Nation  v.  Georgia,  5  Peters,  1,  16. 
"V.  S.  V.  Holliday,  3  Wall.,  41S.     V.  S.  v.  Bridleman,  7  Fed. 
Rep.,  894. 


96  Constitutional  Law 

without  the  consent  of  Congress.  The  land  set  apart  for 
Indian  reservations  is  Federal  property  by  right  of  conquest 
or  of  purchase,  and  even  the  Indians  have  but  a  right  of 
occupancy  there,  which  Congress  may  deprive  them  of  at  will. 
It  follows  therefore  that  offenses  committed  on  Indian  terri- 
tory are  offenses  against  the  United  States,  and  not  against 
any  State. 

What  has  just  been  said  respecting  trade  with  Indians 
presupposes  the  existence  of  tribal  relations.  If  such  relations 
cease,  as  where  individual  Indians  voluntarily  give  up  the 
tribal  life  and  adopt  the  ways  of  civilization,  the  dependence 
on  Congress  may  end,  and  commerce  with  them  may  be  carried 
on  as  with  other  persons. 

Section  8,  Clause  4. — To  establish  a  uniform  rule  of 
naturalization,  and  uniform  laws  on  the  subject  of  bank- 
ruptcies throughout  the  United  States; 

Mode  of  Naturalization. — Naturalization  is  the  legal  proc- 
ess of  making  an  alien  a  citizen.  The  requirements  for  such 
citizenship  and  the  mode  of  naturalizing  are  as  follows :  Be- 
fore becoming  a  citizen  of  the  United  States  an  alien  must 
reside  within  the  continental  limits  of  the  country  at  least 
five  years,  and  one  year  in  the  State  where  he  makes  applica- 
tion; he  must  show  to  the  satisfaction  of  the  court  in  which 
he  makes  application  that  he  is  of  good  moral  character, 
attached  to  the  principles  of  republican  government,  and  has 
at  the  time  a  bona  fide  residence  within  the  State ;  at  least  two 
years  before  he  can  legally  ask  for  citizenship,  he  must  register 
his  intention  of  becoming  a  citizen ;  and  lastly,  at  the  time  of 
final  application  he  must  declare  on  oath  that  he  will  support 
the  Constitution,  renounce  his  allegiance  to  any  foreign  State, 
and  give  up  what  claims  he  may  have  to  any  hereditary  title, 
or  order  of  nobility.  In  other  words,  an  alien  wishing  to  be- 
come a  citizen  must  first  register  his  intention.     Two  years 


The  Powers  of  Congress  97 

later,  if  his  residence  here  amounts  to  five  years,  he  may  be- 
come a  citizen  by  going  before  the  proper  court "  and  renounc- 
ing allegiance  to  the  fatherland  and  swearing  allegiance  to  the 
United  States — provided  he  measures  up  to  the  few  rather 
general  requirements  of  domicil,  character,  etc. 

Exceptions. — Not  every  foreign-born  person  has  to  go 
through  this  process  before  becoming  a  citizen,  (a)  The 
minor  children  of  aliens,  though  born  out  of  the  United  States, 
if  dwelling  within  the  United  States  when  their  parents  are 
naturalized,  become  citizens  by  the  naturalization  of  their 
parents,  (b)  Any  woman  who  might  lawfully  be  naturalized 
is  deemed  a  citizen  if  married  to  a  citizen  of  the  United  States, 
(c)  Minor  children  that  such  a  woman  may  have  become 
citizens  by  the  same  act.  (d)  An  alien  soldier,  21  years  of 
age  or  older,  regularly  discharged  from  the  army  of  the 
United  States,  may  be  admitted  to  citizenship  without  pre- 
vious intention,  and  after  one  year's  residence,  (e)  An  alien, 
21  years  of  age  or  older,  who  has  served  five  consecutive  years 
in  the  United  States  navy,  or  one  enlistment  in  the  marine 
corps  (four  years),  and  has  been  honorably  discharged,  may 
be  admitted  to  citizenship  without  previous  declaration  of  in- 
tention, (f )  An  alien,  who  comes  to  the  United  States  while 
a  minor  and  continues  to  reside  here  until  21  years  of  age,  may, 
if  his  residence  amounts  to  five  years,  become  a  citizen  without 
previous  declaration  of  intention. 

Who  are  Citizens? — The  very  pertinent  questions  arise  in 
this  connection,  Wiiat  is  citizenship?  and.  Who  arc  citizens  of 
the  United  States?  Citizenship  may  be  defined  as  the  state  of 
being  a  citizen;  an  American  citizen  may  be  said  to  be  any 
person  owing  allegiance  to  the  government  of  the  United 
States  and  entitled  to  its  protection.  The  14th  Amendment 
to  the  Constitution  defines  the  term  by  declaring  that  "all 
persons  born  or  naturalized  in  the  United  States,  and  subject 

»  See  p.  100. 
7 


98  Constitutional  Law 

to  the  jurisdiction  thereof,  are  citizens  of  the  United  States 
and  of  the  States  wherein  they  reside."  Thus  citizenship  de- 
pends on  neither  age,  sex,  nor  suffrage.  A  baby  is  as  lawfully 
a  citizen  as  a  mature  man;  so  is  a  woman.  Millions  of  citizens 
do  not  vote,  and  cannot  vote;  on  the  other  hand  some  voters 
are  not  even  citizens."  Indians  while  maintaining  tribal 
relations  are  not  citizens,  or  have  but  a  limited  citizenship. 
Chinese  are  not  citizens  of  the  United  States,  unless  born  of 
resident  parents,  and  under  the  present  laws  they  cannot  be- 
come so  by  naturalization.'"  The  children  of  foreigners  who 
are  touring  America,  or  of  diplomatic  agents,  though  born  in 
the  United  States,  are  not  citizens  of  the  United  States,  for 
they  are  not  subject  to  the  jurisdiction  thereof."  Similarly, 
children  born  of  American  parents  on  the  ocean,  or  in  foreign 
countries,  are  citizens  of  the  United  States,  for  they  take  the 
status  of  their  parents. 

Expatriation. — England  once  proclaimed  the  doctrine, 
"  Once  an  Englishman,  always  an  Englishman  " ;  and  per- 
sistent adherence  to  that  doctrine  brought  on  the  War  of  1812. 
In  other  words  England  denied  to  her  citizens  the  right  of 
expatriation,  that  is,  the  right  to  throw  off  allegiance  to  the 
mother  country  and  become  citizens  of  some  other  country. 
The  United  States,  however,  has  always  recognized  the  right, 
and  in  1868  Congress  expressly  declared  it.  Thus  just  as  a 
foreigner  may  renounce  allegiance  to  some  other  government 
and  solicit  citizenship  in  the  United  States,  so  a  citizen  of  the 
United  States  may  give  up  his  allegiance  and  become  a  bona 
fide  member  of  some  alien  commonwealth.  Such  a  person 
could  regain  citizenship  in  his  own  country  only  through 
naturalization. 

"^  See  footnote  7,  p.  34. 

'"  22  Stat,  at  Large,  26,  61. 

»'  United  States  v.  Wong  Kim  Ark,  169  U.  S.,  649.  693. 


The  Poweh.s  of  Congress  99 

Immigration  and  Exclusion  Laws. — In  1907  Congress  en- 
acted that  every  master,  agent,  owner  or  consignee  of  a  vessel 
bringing  alien  immigrants  into  the  United  States  should  pay 
a  tax  of  four  dollars  for  every  alien  thus  brought  in.  The 
money  thus  collected  is  to  be  paid  into  the  treasury  of  the 
United  States  to  become  a  special  "  immigrant  fund,"  which 
the  Secretary  of  Commerce  and  Labor  may  cause  to  be  used 
to  defray  the  expense  of  regulating  the  immigration  of  aliens 
into  the  United  States. 

Under  this  law  the  following  classes  of  persons  are  excluded 
from  admittance  to  the  United  States;  all  idiots,  imbeciles  and 
shoplifters;  all  paupers,  or  people  likely  to  become  a  public 
charge;  all  seriously  diseased  persons;  and  all  such  generally 
undesirable  persons  as  convicted  criminals,  polygamists,  an- 
archists, prostitutes,  and  contract  laborers. 

Chinese. — In  respect  to  citizenship  within  the  United  States 
the  Chinese  are  in  a  class  by  themselves.  No  State  or  Federal 
court  can  now  admit  a  Chinese  to  citizenship.**  A  certificate 
of  naturalization  issued  by  a  State  court  to  a  Chinese  is  void 
on  its  face.'"  But  children  born  of  Chinese  parents  already 
residing  in  this  country,  who  are  not  members  of  diplomatic 
corps,  are  citizens  by  virtue  of  the  14th  Amendment."  But 
an  immigrant  Chinese  is  not  entitled  to  citizenship,  for  he  is 
not  a  white  person  in  the  meaning  of  the  naturalization  laws." 
The  Exclusion  Acts  of  1882-1884  are  not  applicable  to  Chinese 
born  here.  They  are  citizens,  and  no  citizen  can  be  excluded 
from  the  United  States  except  for  crime."     (See  also  p.  275.) 

Naturalization  of  Communities. — The  Constitution  has  pro- 
vided for  the  naturalization  of  individuals.     What  is  done, 

'^  22  Statutes  at  Large.  26,  61. 
'"In  re  Gee  Hop,  71  Fed.  Rep.,  274  (1S95). 

"In  re  Gee  Hop,  71  Fed.  Rep.,  274  (1895).    In  re  Look  Tin  Sin, 
21  Fed.  Rep.,  905.    U.  S.  v.  Wong  Kim  Ark,  169  U.  S.,  649. 
«»In  re  Ah  Yup,  5  Sawyer,  155  (1894). 
••  In  re  Look  Tin  Sin,  21  Fed.  Rep.  905. 


100  Constitutional  Law 

however,  when  on  the  addition  of  new  territory  to  the  United 
States  entire  communities  are  ready  for  citizenship?  Do  the 
ordinary  methods  obtain?  By  no  means.  It  would  be  ob- 
viously ridiculous  for  the  United  States  courts  to  pass  on  the 
qualifications  of  the  millions  of  applicants  that  such  addition 
of  territory  might  produce.  Congress  has  therefore  assumed 
the  power  to  admit  to  citizenship  by  a  single  act  all  the  in- 
habitants of  such  new  territory.  Accordingly,  when  Texas  was 
admitted  to  the  Union  all  its  inhabitants  were  made  citizens 
by  a  special  resolution  of  Congress.  It  is  not  to  be  supposed, 
however,  that  the  acquisition  of  new  territory  means,  ipso 
facto,  new  citizens.  It  is  a  matter  that  rests  entirely  with 
Congress  to  decide. 

"  A  Uniform  Rule." — Congress,  under  the  authority  of  this 
clause  in  the  Constitution,  has  provided  a  uniform  rule  for  the 
naturalization  of  aliens  by  prescribing  the  manner  in  which 
it  shall  be  done,  and  what  courts  shall  have  power  to  do  it. 
The  mode  of  naturalization  has  already  been  explained;  the 
courts  having  naturalization  powers  are  the  U,  S.  District 
Courts,  the  District  and  Supreme  Courts  of  Territories,  and 
any  State  court  of  record  having  common  law  jurisdiction.^ 
The  fact  that  State  courts  may  confer  citizenship  on  foreigners 
does  not  mean  that  the  power  to  naturalize  is  in  the  States 
themselves.  These  courts  get  their  authority  entirely  from 
Congress ;  they  can  act  only  in  accordance  with  uniform  regu- 
lations prescribed  in  the  Federal  statutes. 

The  power  of  Congress  over  naturalization  is  exclusive.  If 
it  were  not,  if  each  State  could  invest  aliens  with  citizenship 
at  will,  there  might  be  as  many  modes  of  naturalization  as 
there  are  States.  This  was  the  case  under  the  Articles  of  Con- 
federation, and  it  resulted  in  great  confusion.  Although 
States  may  define  the  rights  of  aliens  and  of  naturalized 
citizens  within  their  borders,  they  have  no  authority  to  make 

'^R.  S.,  2165. 


Tin:  Powers  of  Congress  101 

citizens  of  the  United  States.  The  fact  tliat  Congress  has  the 
sole  power  over  naturalization  is  in  harmony  with  Article  4, 
Section  2,  Clause  1,  of  the  Constitution,  whidi  declares  that 
"The  citizens  of  each  State  shall  be  entitled  to  all  privileges 
and  immunities  of  citizens  in  the  several  States."  It  is  hard 
to  see  how  the  "  privileges  and  immunities  of  citizens  in  the 
several  States  "  could  be  the  same  unless  the  method  of  mak- 
ing citizens  were  the  same  in  all  the  States. 

An  Apparent  Exception. — ^The  query  is  sometimes  raised: 
Can  a  naturalized  citizen  of  the  United  States,  on  revisiting 
iiie  land  of  his  nativity,  be  made  to  serve  his  apprenticeship  in 
the  army,  if  he  has  not  already  done  so,  where  such  apprentice- 
ship is  regularly  demanded?  Yes,  he  may.  This  of  course 
creates  an  anomalous  situation,  for  the  United  States  guaran- 
tees the  same  protection  to  naturalized  citizens  that  is  due  to 
natural  l)orn  citizens.  The  logic  of  the  matter,  however,  seems 
to  be  as  follows :  In  certain  foreign  countries  military  service 
is  regarded  as  an  obligation  which  attaches  to  every  male  child 
upon  his  birth,  and  is  not  discharged  by  his  naturalization 
elsewhere.  Xaturalization,  it  is  argued,  in  no  way  affects 
duties  or  obligations  owed  to  the  State  of  the  nativity  at  the 
time  when  the  naturalization  is  effected,  and  therefore  it  does 
not  discharge  an  individual  from  his  obligation  to  military 
service.  The  question  has  been  raised  and  passed  on  a  number 
of  times."*  With  several  countries  of  Europe  this'  matter  is 
covered  by  special  treaty,  in  which  case,  of  course,  the  treaty 
holds.  Thus  in  the  general  treaty  with  Belgium  there  is  an 
express  provision  u])()n  this  point. 

Bankruptcy  and  Insolvency. — The  object  of  insolvency  and 
bankrupt  laws  is  twofold :  first,  to  free  a  person  from  perpetual 
bondage  to  creditors  and  thus  give  him  another  chance  to 
succeed;  second,  to  secure  an  equitable  division  of  the  prop- 

■"See  on  this  point:  Wharton's  International  Law  Digest,  385, 
Sec.  ISl;  Davis'  International  Law,  3d  Ed.,  p.  144. 


102  Constitutional  Law 

erty  of  the  debtor  among  the  various  creditors.  Generally 
speaking,  an  insolvent  person  is  one  whose  debts  exceed  his 
assets;  a  bankrupt  is  one  who  has  voluntarily  or  involuntarily 
gone  into  bankruptcy:  that  is,  wdio  has  been  adjudged  a  bank- 
rupt by  a  court  of  competent  jurisdiction.  The  condition  of  in- 
solvency usually  precedes  bankruptcy,  but  not  every  insolvent 
person  becomes  a  bankrupt. 

The  control  of  bankruptcy  is  placed  by  the  Constitution 
wholly  in  Congress.  In  order  that  the  credit  of  the  country 
be  stable,  and  that  the  method  of  obtaining  freedom  from 
indebtedness  be  the  same  in  all  the  States,  it  is  necessary  that 
Congress  should  have  such  complete  control.  Under  the 
Articles  of  Confederation  the  States  regulated  bankruptcy  as 
they  saw  fit;  and  until  Congress  passed  a  uniform  rule  they 
continued  to  do  so,  even  after  the  Constitution  was  adopted; 
and  their  laws  were  upheld.^"  But  when  Congress  passed  a 
national  bankruptcy  law,  such  law  superseded  State  statutes 
on  the  subject,  where  the  latter  were  antagonistic.  The  last 
national  bankruptcy  law  was  passed  in  1898  by  the  55th  Con- 
gress.   The  main  provisions  of  the  law  are  as  follows : 

A.  That  the  United  States  District  Courts'  in  the  States 
and  Territories,  and  the  Supreme  Court  of  the  District  of 
Columbia,  shall  have  jurisdiction  over  cases  in  bankruptcy. 

B.  That  acts  leading  to  bankruptcy  shall  be:  1,  any  at- 
tempt to  delay,  hinder  or  defraud  creditors  by  purposely  con- 
veying, concealing,  or  removing  property;  2,  any  attempt  to 
prefer,  while  insolvent,  one  creditor  over  another;  3,  per- 
mitting one  creditor  to  obtain  a  preference  over  another;  4, 
making  a  general  assignment  of  property  for  the  benefit  of 
creditors ;  5,  admitting  in  writing  a  state  of  insolvency  and  a 
willingness  to  be  adjudged  a  bankrupt. 

C.  That  the  District  Court  may  ap]K)int  referees,  or  trustees, 
in  bankruptcy,  who  shall  inventory  the  property,  make  proper 

"Sturgis  V.  Crowningshleld,  4  Wheat.,  122  (1819). 


TiiR  Powers  of  Congress  103 

reports  of  the  same  to  the  court,  and  shall  eqiiitahly  distribute 
the  proceeds  of  the  estate,  or  the  earnings  of  the  corporation, 
among  the  creditors. 

D.  That  any  insolvent  person,  except  a  corporation,  may 
become  a  voluntary  bankrupt;  ajid  that  any  private  banker, 
any  incorporated  company,  or  corporation,  owing  debts  to  the 
amount  of  $1000.00  or  more,  and  any  private  person,  except 
wage  earner  or  farmer,  may  become  an  involuntary  bankrupt. 
This  means  that  any  insolvent  person,  except  a  corporation, 
may  petition  to  be  declared  a  bankrupt ;  and  that  any  corpora- 
tion, private  banker,  or  private  person,  except  wage  earner  or 
farmer,  may  be  forced  into  bankruptcy  on  the  petition  of 
creditors. 

Results  of  Bankruptcy  Proceedings. — When  a  person  has 
been  discharged  from  bankruptcy  by  a  court  of  competent 
jurisdiction  he  is  legally  freed  from  all  claims  of  creditors, 
even  though  his  property  may  have  l)cen  sufficient  to  pay  only 
a  small  part  of  his  debts.  He  is  at  liberty  to  engage  in  business 
again  and  is  under  no  legal  obligation  to  pay  debts  previously 
contracted. 

"When  a  corporation  goes  into  bankruptcy  the  referees,  or 
trustees,  take  charge  of  the  business  and  run  it  for  the  benefit 
of  the  creditors.  Sometimes  their  efforts  result  in  paying  off 
all  the  indebtedness  and  setting  the  corporation  again  on  a 
sound  basis,  and  sometimes  they  are  obliged  to  sell  out  the 
business  assets  entirely.  In  this  case  the  corporation  as  such 
goes  out  of  existence. 

State  laws. — The  law  of  189.S  on  bankruptcy  did  not  neces- 
sarily make  void  all  State  laws  on  insolvency  and  bankruptcy. 
Where  the  latter  are  not  repuirnant  to  the  Constitution  or  to 
the  law  of  1898,  or  do  not  attempt  to  operate  outside  of  State 
limits,  or  affect  any  contract  created  before  the  law  was  con- 
ceived, thev  are  valid. 


104  COXSTITUTIONAL   LaW 

Section  8,  Clause  5. — To  coin  money,  regulate  the  value 
thereof  and  of  foreign  coin,  and  fix  the  standard  of 
weights  and  measures; 

Money. — Section  10  (p.  150)  suggests  that  only  gold  and 
silver,  coined  by  the  government  and  made  legal  tender  in  pay- 
ment of  debts,  is  money.  In  common  parlance,  however,  any 
recognized  medium  of  exchange  is  money.  Thus  in  some  of 
the  Colonies  before  the  Eevolution  hides  and  Indian  wampum 
were  used  for  purposes  of  exchange.  To-day  paper  bills, 
stamped  and  issued  by  the  government,  as  well  as  copper  and 
nickel  pieces,  are  so  used.  All  these  may  reasonably  be  termed 
money,  for  they  are  such  in  a  practical  way,  although  they  are 
neither  gold  nor  silver,  and  their  legal  tender  capacity  is 
limited.  The  term  "lawful  money,"  however,  has  a  limited 
signification.  It  includes  gold  coins,  silver  dollars,  United 
States  notes,  and  treasury  notes. 

Money  Must  Have  Value. — ^]\Iediums  of  exchange,  under 
whatever  names  they  may  go,  must  have  a  certain  market  value 
in  themselves,  or  be  based  on  that  which  has.  Thus  all  coins 
in  the  United  States  are  made  of  metal  whose  value  in  the 
markets  of  the  world  either  equals  or  ajsproaches  their  face 
value.  This  is  true  of  all  gold  pieces.  If  we  melt  a  gold 
dollar,  we  get  a  dollar's  worth  of  pure  gold,  plus  a  little  alloy, 
or  hardening  compound.  If  we  melt  silver,  copper,  or  nickel 
coins,  we  get  pure  metal,  whose  value  only  approaches  the 
face  value  of  the  coins.  Their  ability  to  circulate  as  mediums 
of  exchange  therefore  must  depend  on  something  more  than 
their  intrinsic  worth.  This  something  more  is  the  credit, 
or  financial  standing,  of  the  government  that  issues  them — a 
rather  indefinite  something,  it  is  true,  but  none  the  less  a  thing 
to  be  reckoned  with.  For  this  reason  alone,  much  of  the  paper 
money  of  the  United  States  circulates  at  its  face  value.  The 
worth  of  the  material  it  is  made  of  is  slight,  but  backed  as  it 
is  by  the  government's  promise  to  redeem  in  that  which  has 


The  Powers  of  Congress  105 

value,  it  passes  readily  from  hand  to  hand,  and  forms  a  large 
and  convenient  part  of  the  nation's  currency.  So  also  of  the 
minor  coins,  whose  intrinsic  value  is  less  than  their  face  value. 
Such  parts  of  the  nation's  currency  depend  for  their  stahility 
and  value  on  the  real  or  supposed  ability  of  the  government  to 
maintain  its  credit  before  the  world.  Governments  and  per- 
sons are  alike  in  this  respect.  The  notes  of  a  business  man  are 
valuable  only  so  far  as  he  is  able,  or  supposed  to  be  able,  to  pay 
them.  So  that  part  of  a  nation's  currency  that  is  based  on 
credit  is  acceptable  only  so  far  as  the  financial  standing  of  the 
nation  is  above  susj^icion. 

Legal  Tender. — This  term  is  synonymous  with  "  lawful 
money "  mentioned  a])Ove.  It  means  that  which  the  law 
authorizes  a  debtor  to  offer  and  compels  a  creditor  to  accept 
in  payment  of  a  debt.  It  is  a  creature  of  the  law  entirely.  In 
the  United  States  gold  coins  are  and  always  have  been  legal 
tender  for  all  sums.  From  1792  till  1853  silver  coins  were 
likewise  legal  tender  for  all  sums.  Since  1853,  however,  sub- 
sidiary silver  coins  have  been  legal  tender  for  limited 
amounts  only/"  and  from  1853  till  1878  the  silver  dollar  was 
not  full  legal  tender.  Since  the  last  date,  however,  the  silver 
dollar  has  been  legal  tender  for  all  debts.  Xickel  and  copper 
coins  are  now  iQgal  tender  for  sums  not  exceeding  twenty-five 
cents.  As  to  paper  money,  banknotes,  and  silver  and  gold 
certificates  have  never  been  legal  tender.  On  the  other  hand, 
treasury  notes  and  United  States  notes  have  been  made  legal 
tender  by  the  authority  of  Congress. 

Regulate  Value. — This  means  to  determine  the  value  of  coins 
in  terms  of  some  other.  In  order  to  have  a  currency  consisting 
of  more  than  one  thing  we  must  first  have  a  standard,  to  which 
we  may  adjust  all  other  weights  and  values.    Congress  cannot 

""From  1853  to  1879  they  were  legal  tender  for  $3.00;  since 
1879,  for  $10.00.  They  are  redeemable,  however,  when  presented  in 
sums  of  $20.00  or  more. 


106  Constitutional  Law 

prescribe  the  value  of  the  material  out  of  which  money  is 
made;  Congress  can  only  ascertain  its  value  by  consulting  the 
quotations  in  the  markets,  and  then  fix  the  size  and  the  weight 
of  the  coins  accordingly.  If  one  metal  is  adopted  as  the 
standard,  we  have  a  mono-metallic  currency;  if  two  metals 
are  selected,  we  have  a  bi-metallic  currency.  Congress,  in  its 
first  coinage  act  (1792),  adopted  the  bi-metallic  standard  by 
authorizing  the  minting  of  gold  and  silver  coins,  and  their 
circulation  on  an  equality  at  the  ratio  of  15  to  1.  This  meant 
that  Congress,  having  ascertained  gold  to  be  worth  fifteen 
times  as  much  as  silver,  put  into  the  silver  coins  fifteen  times 
as  much  pure  silver  as  it  put  pure  gold  into  the  gold  coins,  and 
authorized  their  circulation  on  a  parity.  That  is,  gold  dollars 
and  silver  dollars  were  given  the  same  purchasing  power. 
But  it  is  hard  to  maintain  a  bi-metallic  currency.  The  market 
value  of  one  of  the  two  metals  is  always  going  up  or  down, 
and  the  government  is  frequently  obliged  to  change  the 
relative  weights  of  the  two  coins  in  order  to  keep  their  values 
equal.  So  Congress  found.  By  183-t  the  relative  values  of 
gold  and  silver  had  so  changed  that  Congress  was  under  the 
necessity  of  changing  the  ratio  from  15  to  1,  to  18  to  1.  Again 
Congress  found  that  it  could  not  control  the  market  values 
of  the  two  metals,  and  in  1853  it  discarded  the  double  stand- 
ard by  making  gold  legal  tender  for  all  sums,  and  making  all 
other  coins'  subsidiary  to  gold,  reducing  their  weights  enough 
to  insure  their  remaining  subsidiary.  This,  at  least  in  theory, 
was  the  most  sensible  course.  But  in  1878  Congress  again  set 
up  the  double  standard,  by  declaring  that  the  silver  dollar 
should  be  full  legal  tender  again,  and  that  it  was  the  policy  of 
the  government  to  maintain  the  gold  and  the  silver  dollar  on 
a  parity.  It  was  only  a  nominal  double  standard,  however, 
that  Congress  set  up,  for  the  market  value  of  the  silver  in  the 
silver  dollar  was  not  equal  to  one  hundred  cents,  and  since  then 
it  has  fallen  so  much  lower,  that  the  coin  is  practically  sub- 


TiiK  Powers  of  Congress  107 

sidiary.     In  1908,  for  example,  the  pure  metal  in  a  silver 
dollar  was  worth  only  about  forty-five  cents. 

One  can  readily  see  that  in  a  time  of  extremity,  wlicn  the 
government  might  be  unable  to  meet  its  obligations,  the  ex- 
change value  of  the  silver  dollar,  and  indeed  of  all  currency 
whose  intrinsic  value  is  less  than  its  face  value,  might  become 
no  more  than  what  its  basic  metal  would  bring  in  the  open 
market. 

It  is  not  worth  while  to  discuss  here  the  dilTerent  coins  now 
in  use  in  the  United  States;  their  diiferences  are  obvious.  It 
may  be  of  interest,  however,  to  point  out  the  distinctive 
features'  of  the  paper  coinage,  for  those  are  not  so  generally 
known. 

Paper  Currency. — For  ease  in  handling,  and  to  lessen  the 
certain  waste  of  the  valuable  metal  in  coins  through  erosion, 
and  for  other  minor  reasons,  the  United  States  government 
has  found  it  practicable  to  issue  paper  currency.  Such  cur- 
rency is  based  either  on  actual  coin  or  bullion  stored  in  the 
treasury,  or  on  the  credit  of  the  government.  If  for  every  bill 
issued  its  equivalent  in  coin  or  bullion  is  deposited  in  the 
government's  vaults,  there  is  little  danger  of  a  depreciation ; 
but  when  bills  are  issued  entirely  on  the  credit  of  the  govern- 
ment they  are  based  on  that  which  is  indefinite  and  unstable. 
If  the  nation  is  rich,  and  its  credit  high,  its  paper  currency 
is  acceptable  at  face  value ;  but  if  the  nation  becomes  poor,  and 
its  credit  low,  such  bills  at  once  depreciate.  The  paper  lur- 
rency  of  the  United  States  consists  of  the  following: 

(A)  Gold  and  Silver  Certificates.— These  bills  have  the 
words  "  Silver  Certificate,"  or  "  Gold  Certificate,"  as  the  case 
may  be,  stamped  on  one  side;  and  on  the  other,  the  inscription, 
"  This  certifies  that  there  has  been  deposited  in  the  treasury' 
of  tlie  United  States  one  silver  dollar,"  or  whatever  the  metal 
or  the  amount  may  be.  These  are  not  legal  tender,  but  being 
represented  by  actual  coin  in  the  treasury,  they  are  a  very 
stable  kind  of  paper  currency. 


108  Constitutional  Law 

(B)  United  States  Notes. — These  are  commonly  called 
"  greenbacks  "  or  "  legal  tenders."  They  are  issued  in  various 
denominations.  They  bear  on  the  face  the  inscription, 
"United  States  Note/'  and  "  The  United  States  will  pay  the 
bearer  ....  dollars."  On  the  reverse  side  is  printed,  "  This 
note  is  a  legal  tender  at  its  face  value  for  all  debts  public  and 
private  except  duties  on  imports  and  interest  on  the  public 
del)t."  This  inscription  is  important.  The  student  will 
notice  that  these  bills  are  not  based  on  coin  or  valuable  metal 
of  any  kind.  They  are  the  government's  promissory  notes,  and 
their  value  depends  solely  on  the  presumed  ability  of  the  gov- 
ernment to  pay  its  debts.  But  governments  cannot  always 
pay  their  debts,  and  in  times  of  financial  stress  their  notes 
tend  to  depreciate  rapidly.  This  was  exactly  what  happened 
at  the  time  of  the  Civil  War.  So  loth  were  the  people  to 
accept  the  government's  notes,  which  were  mere  promises  to 
pay,  that  they  became  nearly  useless  for  exchange.  In  18G2, 
therefore.  Congress,  in  order  to  make  these  notes  receivable 
for  debts,  that  is,  for  past  obligations,  added  the  legal  tender 
feature  to  them.  This,  though  objectionable,  insured  their 
circulation,  and  since  then  they  have  caused  little  disquiet, 
but  have  been  as  serviceable  as  any  other  kind  of  paper  money. 
It  was  questionable  finance  to  do  this,  for  it  arbitrarily  forced 
the  people  to  accept  as  money  a  medium  of  exchange  that  was 
not  valuable  in  itself  and  was  based  on  that  which  is  naturally 
very  uncertain.  It  did  more:  it  made  United  States  notes  in 
a  measure  more  useful  than  gold  or  silver  certificates,  for  the 
latter  have  never  been  made  legal  tender.  In  spite  of  this, 
however,  and  the  fact  that  the  Supreme  Court  has  upheld  the 
legal  tender  acts  of  Congress,"  it  is  hard  to  see  how  in  a  time 
of  monetary  stress  even  this  legal  tender  clause  can  keep  these 
notes  from  depreciation.     The  wondrous  process  of  alchemy 

"The  Legal  Tender  Cases,  12  Wall.,  457;  110  U.  S.,  421. 


The  Powers  of  Congress  109 

has  not  yet  been  discovered ;  not  even  the  Conf^ress  of  the 
United  States  ean  make  something  out  of  nothing. 

(C)  Treasury  Notes. — These  are  not  now  in  general  circula- 
tion. They  were  issued  under  the  Sherman  Act  of  1890  in 
payment  of  silver  bullion,  but  have  since  been  largely  retired 
and  cancelled.  The  Sherman  Act  required  the  government 
to  purchase  four  and  one-half  million  ounces  of  silver  bullion 
per  month,  to  coin  two  million  ounces  per  month  until  July  1, 
1891,  and  to  store  in  the  treasury  the  bullion  then  left  un- 
coined. The  notes  issued  for  the  payment  of  this  raw  silver 
bore  on  the  face  the  promise  "  to  pay  the  bearer  on  demand 

dollars  in  coin."    The  purpose  of  this  issue  of  bills,  and 

the  coinage  of  so  much  silver  was  to  maintain  gold  and  silver 
on  a  parity.  The  result  was,  however,  that  these  notes  began 
to  be  presented  in  great  quantities'  at  the  treasury,  and  gold 
demanded  in  payment  to  such  an  extent  that  the  fund  of 
$100,000,000  in  gold,  reserved  to  insure  the  stability  of  green- 
backs, was  seriously  diminished.  A  period  of  financial  unrest 
followed.  Financiers  then  saw  that,  so  long  as  the  government 
was  bound  to  buy  silver  with  treasury  notes'  and  then  redeem 
these  notes  with  gold,  it  would  result  in  a  severe  strain  on  its 
resources.  A  special  session  of  Congress  was  called  therefore 
in  1893,  which  repealed  the  purchasing  clause  of  the  Sherman 
Act.  Later  acts  of  Congress  have  required  the  Secretary  of 
the  Treasury  to  coin  the  silver  purchased  under  the  Sherman 
Act  into  standard  silver  dollars,  and  with  these  dollars  to  re- 
deem outstanding  treasury  notes  as  fast  as  presented.  As 
these  notes  have  been  taken  in  and  cancelled  silver  certificates 
have  been  issued  in  their  places. 

Both  treasury  notes  and  United  States  notes  have  always  been 
reckoned  as  part  of  the  national  debt.  They  are  analogous  to 
government  bonds;  but  unlike  them  they  are  designed  to  pass 
current  as  money;  they  bear  no  date  of  redemption;  and  they  pay 
no  interest. 


110  Constitutional  Law 

(D)  Banknotes. — These  bills  are  issued  by  national  banks, 
or  banks  chartered  by  the  government.  They  are  stamped 
with  the  name  of  the  bank  issuing  them,  their  denomination, 
etc.,  to  wit :  "  The  First  National  Bank  of  New  York  will  pay 
the  bearer  on  demand  ....  dollars."  Banknotes  are  just  as 
good  as  notes  of  the  United  States,  perhaps  better,  for  they 
are  all  secured  by  bonds  deposited  in  the  treasury  of  the 
United  States,  and  they  are  not  evidence  of  indebtedness. 
State  banks,  or  banks  chartered  by  State  legislatures,  for 
many  years  issued  paper  currency,  in  the  face  of  the  constitu- 
tional prohibition,  "  No  State  shall  emit  bills  of  credit." 
Congress  never  expressly  prohibited  the  issuance  of  such  bills, 
but  in  1865  it  passed  an  act,  amended  in  1866,  levying  a  tax 
of  10  per  cent  on  the  circulation  of  all  State  banks.  This 
virtually  drove  State  banknotes  out  of  exi.stence. 

Eetrospect. — It  can  readily  be  seen  from  the  foregoing 
sketch  of  the  monetary  history  of  the  United  States  that  Con- 
gress has  not  found  it  easy  to  exercise  the  power  of  coining 
money,  nor  has  it  been  at  all  times  wholly  successful.  Yet  in 
the  main  it  has  kept  the  nation  sound  financially;  and  there 
has  been  harmony  in  the  matter  of  exchange  among  the  people 
of  the  respective  States,  where,  had  the  States  the  right  to 
exercise  this  great  power,  must  have  been  chaos. 

Foreign  Coin. — Congress  has  exercised  the  power  to  regu- 
late the  value  of  foreign  coin  by  declaring  at  what  rate  it  shall 
be  received  for  duties  on  imports  and  in  payment  for  public 
lands.  This  rate  has  always  been  based  on  the  value  of  the 
pure  metal  in  the  coin.  Congress  has  never  presumed  to 
declare  the  rate  for  contracts  between  private  citizens.  That 
is  done  in  the  open  markets  of  the  world,  and  is  purely  a 
matter  of  supply  and  demand. 

Weights  and  Measures. — Beyond  authorizing  the  troy 
pound  for  use  in  the  national  mint,  and  legalizing  the  metric 
system  in  the  United  States,  Congress  has  done  little  or  noth- 
ing to  "  fix  the  standard  of  weights  and  measures." 


The  Powers  of  Congress  111 

Section  8,  Clause  6. — To  provide  for  the  punishment  of 
counterfeiting  the  securities  and  current  coin  of  the 
United  States; 

Counterfeiting. — Counterfeiting  is  the  making  of  false  coin 
in  the  likeness  of  the  genuine.  The  coin  need  not  he  actually 
used  as  money;  it  is  sufficient  if  the  spurious  article  he  capahle 
of  such  use.  It  must,  however,  be  base,  and  its  resemblance  to 
the  genuine  be  so  close  as  to  be  likely  to  deceive  a  person  using 
ordinary  precaution.  As  used  in  the  present  clause,  however, 
the  term  counterfeiting  has  been  construed  more  broadly  to 
include,  besides  the  making  of  false  coin  and  securities,  the 
intentional  uttering  or  passing  the  same;  or  the  possession  of 
them  or  of  tlie  instruments  for  making  them  with  the  intent  to 
defraud ;  or  the  act  of  bringing  them  into  the  country  for  the 
same  purpose."  Although  mere  possession  of  dies  or  of  false 
coin  does  not  constitute  the  offense  of  counterfeiting,  it  is  a 
suspicious  circumstance;  the  essence  of  the  crime  lies  in  the 
intent  to  deceive.  Federal  statutes  declare  what  the  punish- 
ment for  counterfeiting  the  coin  or  securities  of  the  United 
States  shall  be. 

Securities. — Under  the  term  securities  are  included  all  cer- 
tificates of  indebtedness,  such  as  stocks,  bonds  etc. ;  all  forms 
of  paper  money,  including  banknotes;  all  revenue  and  postage 
stamps;  all  customhouse  certificates,  postal  money  orders, 
stamped  envelopes,  etc.;  and  all  notes  and  bonds  of  foreign 
governments.  The  imitation  of  these  things  for  the  purpose 
of  fraud  is  counterfeiting  just  as  truly  as  the  imitation  of 
money,  and  is  punishable  under  the  laws  of  Congress. 

Power  Not  Exclusive.— Tlie  power  to  coin  money,  as  we 
have  already  noted,  is  exclusive  in  the  Federal  government. 
Hence  it  follows  that  if  the  power  to  punish  counterfeiting 
were  not  expressly  given  to  Congress,  it  would  necessarily  be 
implied  by  the  power  to  coin  monev;  otherwise  the  latter 

"United  States  v.  Marigold,  9  Howard,  560. 


112  Constitutional  Law 

power  would  soon  become  a  nullity.  Whether  the  authority 
to  punish  counterfeiting  is  exclusive  in  Congress  has  been  a 
mooted  question."'  The  better  opinion  seems  to  be  that  in  such 
a  ease,  where  the  exercise  by  the  States  of  any  power  granted 
to  Congress  can  work  no  harm,  but  is  rather  productive  of 
good,  it  is  wise  to  construe  the  clause  conferring  it  reasonably 
and  broadly.  To  make  an  act  punishable  under  both  State 
and  Federal  laws  will  tend  to  decrease  crime  rather  than  to 
increase  it.  It  has  been  held,  therefore,  that  States  may  pass 
laws  forbidding  the  counterfeiting  and  the  circulation  of 
United  States  currency  within  their  borders,  and  may  punish 
offenses  against  such  laws,  as  being  against  the  peace  and  good 
order  of  the  State."  Furthermore,  the  punishment  of  such 
acts  by  a  State  does  not  preclude  a  second  punishment  by  the 
United  States :  for  an  act  may  at  once  be  an  offense  against 
both." 

Ordinarily  the  law  presumes  an  accused  person  to  be  innocent 
until  proved  to  be  guilty.  The  contrary,  strange  as  it  may  seem, 
may  be  the  case  when  one  is  accused  of  counterfeiting.  It  is  a 
reasonable  presumption  that,  when  a  person  attempts  to  pass 
counterfeit  money,  or  has  it  in  possession,  it  is  with  full  knowledge 
of  the  fact,  and  the  burden  of  proof  in  such  a  case  is  on  the  ac- 
cused to  show  that  the  possession  or  the  illegal  act  of  passing 
was  innocent. 

f 

Sectioii  8,  Clause  7. — To  establish  post-offices  and  post- 
roads; 

In  1788  that  remarkable  early  commentary  on  the  Consti- 
tution, the  Federalist,  approaches  this  topic  in  a  half  apolo- 
getic manner.  It  remarks  in  brief  that  "  the  power  of  es- 
tablishing post-roads  must,  in  every  view,  be  a  harmless  power, 
and  may  perhaps  by  judicious  management  become  productive 

«•  See  Story's  Constitution,  §1123. 

**  Fox  V.  Ohio,  5  Howard,  410.    Martin  v.  State,  18  Tex.  App.,  224. 
Houston  V.  Moore,  5  Wheaton,  1;  Cooley's  Prin.  Const.  Law,  p.  94. 
*•  Idem. 


The  Powers  of  Congress  113 

of  great  public  oonvcniency.** "  Could  the  author  here  quoted 
have  foreseen  that  the  Postoffice  Department  was  to  l)ecome 
one  of  the  most  useful  and  beneficent  under  the  government, 
he  would  not  have  written  in  that  cautious  manner.  As  a 
matter  of  fact  no  department  of  the  United  States  illustrates 
so  well  that  the  government  is  for  the  people,  for  no  other 
department  administers  so  well  to  the  comforts,  interests,  and 
necessities  of  persons  in  every  walk  of  life,  and  at  so  small  an 
individual  expense.  The  Postal  Department  was  not  created 
to  make  money,  but  to  administer;  and  as  a  result  it  is  often 
run  at  a  loss.  From  a  small  and  almost  unimportant  branch 
it  has  grown  to  immense  size,  and  tremendous  importance. 
It  gives  work  to  hundreds  of  thousands  of  persons;  it  receives 
and  disburses  tons  of  mail  matter  of  every  description,  silently, 
swiftly,  and  with  certainty ;  and  it  reaches  out  beneficent  hands 
along  thousands  of  miles  of  railways,  highways  and  waterways, 
to  every  accessible  corner  of  a  vast  country. 

Post-Offices  and  Post-Roads. — The  whole  authority  for  put- 
ting into  operation  a  system  at  once  so  intricate  and  so  vast  is 
vested  in  Congress  by  the  simple  and  rather  general  sentence, 
"  Congress  shall  have  power  to  establish  post-offices  and  post- 
roads."  The  power  to  establish  has  been  interpreted  to  in- 
clude the  power  to  regulate,  and  Congress  has  therefore  right- 
fully assumed  the  power  to  create,  manage,  and  control  this 
great  business  of  transporting  and  delivering  the  mails,  and  to 
do  many  things  that  assist  in  making  such  transporting  and 
delivery  quick,  efficient  and  safe.  For  many  years  the  point 
was  under  discussion  whether  the  phrase  "  to  establish " 
meant  to  create,  or  to  point  out;  and  much  effort  was  wasted 
to  prove  that,  while  Congress  could  designate  what  should  be 
used  as  a  post-ofTice,  and  what  road  already  existing  should 
be  a  mail-road,  it  could  construct  neither  one  nor  the  other. 
It  is  the  settled  opinion  now,  however,  that  Congress  can  both 

"  The  Federalist,  No.  42. 
8 


114  Constitutional  Law 

designate  and  construct,  and  Congress  has  always  acted  under 
that  interpretation — many  times  in  the  building  of  post- 
offices;  and  a  few  times  in  the  making  of  post-roads."  Both 
State  and  private  enterprise,  however,  have  been  so  sufficient 
in  road  building  that  Congress  has  been  under  very  little 
necessity  to  enter  on  such  work.  The  terms  post-offices  and 
post-roads  have  both  received  judicial  interpretation,  and  are 
to  be  taken  in  a  broad  sense.  Any  place  where  mail  is  officially 
received,  opened,  or  delivered,  whether  house,  office  room, 
tent,  booth,  boat,  wagon,  or  box,  is  a  post-office*';  and  any 
route  over  which  mail  is  carried  is  a  post- road,  whether  it  be 
railroad,  highway,  canal,  navigable  stream,  or  footpath. 

Under  the  authority  to  regulate  the  postal  system  Congress 
may  do  anything  that  reasonable  public  policy  may  demand. 
Thus  certain  persons  have  for  cause  been  deprived  of  the  use 
of  the  mails;  and  obscene,  injurious  or  libellous  matter  is 
excluded.''"  So  Congress  may  cause  to  be  punished  those  who 
introduce  forbidden  matter  into  the  mails,  and  may  assume 
the  power  likewise  to  define  and  punish  as  misdemeanors  all 
acts  that  are  a  hindrance  to  the  postal  service. 

Organization  of  the  Postal  Service;  Expenses. — The  mail 
system  of  the  United  States  is  under  the  direction  of  a  Post- 
master-General, who  has  a  seat  in  the  President's  cabinet,  and 
four  Assistant  Postmasters-General,  all  of  whom  are  appointed 
by  the  President  and  the  Senate.  The  first  Postmaster- 
General  was  Benjamin  Franklin,  who  organized  the  first  sys- 
tem of  mail  distribution  in  America.  The  present  Post-office 
Department  is  divided  into  four  bureaus,  each  of  which  is 
supervised  by  one  of  the  Assistant  Postmasters-General.  The 
work  of  these  bureaus  and  the  duties  of  the  four  Assistant 
Postmasters-General    arc    clearly    defined    in    the    Federal 

"  Stat,  at  Large,  Vol.  2,  42,  730. 

♦»  United  States  v.  Marselis,  2  Blatch.  Clr.  Ct.,  108. 

♦•  Ex  parte  Jackson,  96  U.  S.,  727. 


The  Powers  of  Congress  115 

statutes.  Each  of  the  bureaus  is,  furthermore,  divided  into 
divisions  to  facilitate  the  Avork,  and  the  labor  in  them  is  carried 
on  by  corps  of  well-trained  clerks.  The  number  of  employees 
in  the  postal  service,  including  postmasters  and  their  assist- 
ants, runs  into  the  thousands;  the  yearly  disbursement  for 
salaries  amounts  to  millions  of  dollars.  A  few  figures  will 
perhaps  give  a  more  definite  idea  of  the  present  vast  extent  of 
the  postal  business,  and  of  the  cost  which  it  involves.  In  1800 
the  number  of  post-offices  in  the  United  States  was  but  903 ;  in 
1910  it  was  59,580.  In  1910  the  expenditures  of  the  Depart- 
ment amounted  to  $229,977,224,  exceeding  the  revenues  by 
about  five  million  dollars;  the  compensation  paid  to  post- 
masters was  $27,521,013;  the  cost  of  transporting  the  mails 
was  $84,882,281.  In  the  same  year  the  pieces'  of  postal  matter 
which  passed  through  the  mails  reached  the  prodigious  num- 
ber of  14,850,102,559. 

Section  8,  Clause  8. — To  promote  the  progress  of  science 
and  useful  arts,  by  securing  for  limited  times,  to  authors 
and  inventors,  the  exclusive  right  to  their  respective 
writings  and  discoveries; 

In  General. — -Just  how  much  science  and  useful  arts  are 
promoted  by  this  clause  is  wholly  conjectural.  It  is  both 
reasonable  and  just,  however,  that  Congress  should  enact  laws 
to  protect  authors  and  inventors  in  the  enjoyment  of  the  fruits 
of  their  brainwork;  and  it  is  the  act  of  a  beneficent  and  far- 
seeing  government  to  hold  out  large  recompense  for  original 
work  of  all  kinds.  The  wisdom  of  placing  copyrights  and 
patents  under  the  power  of  Congress  is  apparent.  In  America 
one  has  no  common  law  right  to  enjoy  alone  the  products  of 
his'  genius;  when  once  made  public  they  are,  in  the  absence  of 
statutory  provisions,  available  to  all.  Furthermore,  a  copy- 
right or  a  ])atcnt  protected  by  State  law  only  would  be  but 
limited  in  its  usefulness.    The  Constitution  does  not  forbid 


116  Constitutional  Law 

the  States  to  enact  patent  or  copyright  laws,  but  the  Supreme 
Court  has  decided  that,  although  States  under  their  police 
power  may  regulate  the  use  of  patented  articles/"  they  may 
not  grant  patents  or  copyrights,  or  regulate  such  rights  or  the 
sale  of  them  in  any  way."  The  power  to  do  those  things  is  in 
Congress  alone.  It  has  always  been  understood,  furthermore, 
that  patent  and  copyright  laws  are  solely  for  the  benefit  of 
authors  and  inventors,"  and  are  not  to  be  extended  by  Con- 
gress to  the  introducers  of  new  works  and  inventions.  The 
patent  and  copyright  laws  of  America  are  modeled  on  those 
of  England. 

Copyrights. — A  copyright  is  an  exclusive  privilege  to  pub- 
lish a  literary  or  artistic  production.  Although  commonly 
applied  to  books  the  term  is  not  so  limited  in  fact,  for  musical 
compositions,  photographs,  paintings,  engravings,  and  even 
statues  may  be  copyrighted.  The  copyright  of  a  musical 
composition  carries  with  it  the  exclusive  right  to  perform  it 
in  public,  or  to  cause  it  to  be  performed.  A  copyright  is  a 
property  right,  which  may  be  assigned. 

The  term  of  a  copyright  is  twenty-eight  years,  from  the  time 
of  recording  the  title  thereof,  witli  the  privilege  of  renewal  for 
twenty-eight  more.  The  method  of  obtaining  it  is  governed 
entirely  by  published  statutes.''  On  the  death  of  the  original 
holder  the  right  passes  to  his  widow  or  children,  even  the  right 
of  renewal.  Thus  the  grant  of  a  copyright,  and  the  same  is 
true  of  a  patent,  creates  a  monopoly.  But  it  is  a  limited 
monopoly.  The  general  public  also  has  rights  to  be  observed, 
and  at  the  expiration  of  a  period  reasonably  long  enough  for 
the  original  grantee  to  reward  himself  for  his  labor  or  inge- 

''■*  Patterson  v.  Kentucky,  97  U.  S.,  501.  State  v.  Tel.  Co.,  36 
Ohio  St.,  296. 

"Crawson  v.  Smith,  37  Mich.,  309.    Hollida  v.  Hunt,  70  111.,  109. 
'^  I.ivlnRston  v.  Van  Ingen,  9  Johns.  (N.  Y.),  507. 
"Rev.  Stat.  4956-7-8  (Amend.  26,  Stat,  at  Large,  1107). 


The  Powers  of  Coxgress  117 

nuity,  the  monopoly  ceases,  and  the  privilege  formerly  en- 
joyed by  one,  or  by  a  few,  is  open  to  all. 

For  many  years  foreign  governments  did  not  allow  Ameri- 
can authors  the  privilege  of  copyright,  and  until  1891  aliens 
and  non-residents  were  likewise  debarred  in  the  United  States, 
By  the  Act  of  March  3,  1891,  however,  Congress  substantially 
granted  the  privilege  of  American  copyright  to  all  foreigners 
whose  own  governments  gave  similar  rights  to  citizens  of  the 
United  States.  Thus  by  the  exchange  of  national  courtesies 
it  is  possible  to  have  one's  copyright  extended  over  more  than 
one  country. 

Patents. — A  patent  is  the  exclusive  right,  secured  by  law  to 
an  inventor,  to  enjoy  the  fruits  of  his  invention  or  discovery 
for  a  limited  period.  The  life  of  a  patent  is  seventeen  years, 
but  tho  right  may  be  renewed' for  seven  more,  provided  the 
holder  can  show  that  he  has  not  received  adequate  compensa- 
tion meantime.  Like  a  copyright,  a  patent  is  a  property  right, 
which  is  assignable  at  law,  and  on  the  death  of  the  holder  the 
right  descends  to  the  heirs  at  law.  A  patent  granted  by  Con- 
gress is  confined  to  the  limits  of  the  United  States;  whether 
a  person  shall  obtain  a  foreign  patent  on  his  invention  depends 
entirely  on  the  disposition  of  the  foreign  government.  There 
are  no  reciprocal  treaties  covering  patents,  as  in  the  case  of 
copyrights.  Under  the  laws  of  the  United  States  an  article 
to  be  pateTita])le  must  have  tho  following  qualifications: 

1.  It  must  be  neiv.  That  is,  it  must  be  original  in  concep- 
tion, not  a  mere  equivalent  of  something  else,  or  a  mere  change 
in  form,  or  a  carrying  forward  of  the  same  idea. 

2.  It  must  be  useful.  Inventions  that  are  wholly  useless, 
or  merely  trifling,  or  pernicious,  are  not  patentable.  This  is 
a  rather  indeterminate  quality,  for  the  degree  of  usefulness 
is  not  always  important;  but,  as  said  by  Mr.  Justice  Bradley 
(107  U.  S.,  200),  it  is  not  the  object  of  the  patent  laws  "  to 
grant  a  monopoly  for  every  trifling  device,  every  shadow  of 
an  idea." 


118  CONSTITUT   OXAL    LaW 

3.  It  must  be  prior  in  time,  i'hat  is,  in  ease  more  than  one 
person  should  apply  for  a  patent  on  the  same  thing,  the  first 
to  reduce  the  invention  to  a  practical  working  condition  is 
entitled  to  the  patent,  rather  than  the  one  who  may  have  first 
conceived  the  idea. 

4.  It  must  not  be  abandoned.  If  it  can  be  shown  that  the 
applicant  has  been  unreasonably  negligent,  or  has  carelessly 
abandoned  his  invention  to  the  use  of  the  public,  he  may  be 
denied  the  patent.''"  It  is  an  old  maxim  of  the  law  that  "  Neg- 
ligence always  has  misfortune  for  a  companion." 

The  method  of  obtaining  a  patent  is  governed  by  the  public 
statutes.''  The  grant  of  a  patent,  however,  gives  the  grantee 
absolute  rights,  and  not  even  the  United  States  government 
may  use  a  patented  invention  without  the  consent  of  the 
patentee,  or  without  making  adequate  compensation.'*  In 
such  cases  the  government  officers  are  themselves  liable  to 
personal  suit. 

Trade-Marks. — These  cannot  be  patented  or  copyrighted, 
for  they  are  neither  inventions  nor  writings  within  the  mean- 
ing of  the  Constitution."  Distinguishing  marks  on  goods 
destined  for  interstate  or  export  trade  may,  however,  be  reg- 
istered at  the  Patent  Office,  and  all  unwarranted  use,  or  wilful 
imitation  of  such  registered  mark  is  illegal.'*  A  registered 
trade-mark  endures  for  thirty  years,  and  may  be  renewed  for 
thirty  more.  Congress  has  no  authority  over  marks  on  goods 
in  purely  domestic  or  Intra-state  trade,  but  in  many  States 
they  are  protected  by  State  laws. 

Section  8,   Clause  9. — To  constitute  tribunals  inferior 
to  the  Supreme  Court; 

"  Gayler  v.  "Wilder,  10  How.,  477.  Dable  Shovel  Co.  v.  Flint,  137 
U.  S.,  41. 

"  R.  S.,  4883-4936. 
"Belknap  v.  Schild,  161  U.  S.,  10. 
"The  Trade-mark  cases,  100  U.  S..  82. 
5"  33  Stat,  at  T.ar?re.  728, 


The  Powers  of  Congress  119 

Inferior  Courts. — The  Constitution  established  but  one 
court  for  the  United  States — the  Supreme  Court.  The  present 
clause,  however,  gave  Congress  full  power  to  establish  other 
inferior  courts,  unlimited  in  number,  jurisdiction,  or  comple- 
ment; and  Congress  early  proceeded  to  put  that  power  into 
execution  by  establishing  the  District  and  Circuit  Courts,  and 
the  Circuit  Courts  of  Appeals.  The  power  thus  granted,  how- 
ever, is  not  exclusive :  States  may  create  judicial  systems,  as 
well  as  the  United  States,  but  with  limited  jurisdictions.  In 
consequence,  the  system  of  legal  administration  within  the 
United  States  has  become  rather  complicated.  Besides  the 
great  Federal  system  there  are  as  many  State  systems  as  there 
are  States,  and  hardly  any  two  States  are  alike  in  their  ad- 
ministrations of  the  law.  A  fuller  discussion  of  the  Federal 
courts,  as  well  as  some  remarks  on  State  systems,  will  be 
found  in  the  pages  devoted  to  Article  3. 

Section  8,  Clause  10. — To  define  and  punish  piracies  and 
felonies  committed  on  the  high  seas,  and  offenses  against 
the  law  of  nations; 

In  General. — It  is  the  manifest  purpose  of  this  clause  to 
provide  for  the  punishmcTit  of  serious  offenses  committed  in 
that  part  of  the  world  that  is  under  the  jurisdiction  of  no 
nation.  The  authority  for  such  power  is  derived  from  two 
sources:  first,  from  the  principle  that  international  law  allows 
any  nation  to  pursue  and  punisli  wherever  found  those  wild 
sea  rovers  that  are  inimical  to  civilized  peoples  and  subject  to 
no  nation ;  secondly,  from  the  principle  that  a  nation's  vessels 
are  floating  hits  of  the  nation's  territory.  Offenses  committed 
on  vessels  sailing  under  the  American  flag  are,  therefore, 
plainly  within  the  scope  of  congressional  legislation. 

Piracy. — At  common  law,  piracy  was  robber\%  aninic 
furandi,  on  the  high  seas;  and  high  seas,  the  ocean  beyond 
low  water  mark.     The  present  clause,  however,  plainly  give? 


120  Constitutional  Law 

to  Congress  the  power  to  enlarge  this  definition  of  piracy ;  and 
Congress  has  so  done.  At  common  law,  the  slave  trade  was 
not  deemed  piracy,  yet  in  1820  Congress  declared  it  to  be 
punishable  as  such.  Congress  has  also  enlarged  the  definition 
of  liigh  seas  to  include  the  Great  Lakes,  and  the  Supreme 
Court  has  held  likewise."  It  follows,  therefore,  that  any 
offense,  committed  on  the  high  seas  or  on  the  Great  Lakes, 
may  be  punished  in  the  courts  of  the  United  States  as  piracy, 
if  Congress  has  declared  the  act  to  be  piracy;  but  that  be- 
fore Congress  can  declare  an  offense  to  be  punishable,  it  must 
first  define  the  offense.  It  is  not  necessary,  however,  that  such 
acts  be  defined  as  piracy  as  are  held  to  be  piracy  by  the  common 
law,  or  by  the  law  of  nations. 

Felonies. — Under  the  common  law  of  England  felonies  were 
those  offenses  for  which  a  person  might  suffer  loss  of  life  or  of 
property,  or  of  both,  according  to  the  degree  of  his  guilt.  In 
American  law  the  term  felony  is  not  clearly  defined.  It  is  used 
loosely  to  distinguish  offenses  of  a  serious  nature  from  those 
of  a  less  serious  nature,  or  misdemeanors.  But  this'  distinc- 
tion is  slowly  disappearing.  State  statutes  usually  define 
felonies  as  those  crimes  for  which  the  punishment  is  death  or 
incarceration  in  the  State  prison.""  The  Federal  statutes  have 
never  defined  the  term,  but  under  the  authority  of  this  clause 
Congress  may  declare  any  offense  committed  on  the  high  seas 
a  felony  and  cause  it  to  be  punished  as  such.  Thus  mutiny 
committed  on  a  ship  under  American  colors  while  on  the  ocean 
is  punishable  under  the  laws  enacted  by  Congress'.  But 
robbery  on  a  ship  belonging  to  subjects  of  a  foreign  state,  and 
by  one  not  a  citizen  of  the  United  States,  would  not  be  punish- 
able in  the  courts  of  the  United  States,  for  the  latter  would 
have  no  jurisdiction  over  cither  persons  or  property  on  such  a 

"  26  Stat,  at  Large,  424;  U.  S.  v.  Rodgers,  150  U.  S.,  249. 
*•  e.  g.,  Mass.  and  N.  Y. 


The  Powers  of  Congress  121 

vessel."  The  principle  to  be  grasped  here  is  that  all  acts  done 
on  the  high  seas,  or  on  navigable  bays,  lakes,  harbors,  and 
rivers,  fall  naturally  under  the  purview  of  Congress,  for  all 
interstate  and  foreign  commerce  and  all  foreign  relations  are 
governed  by  Congress,  rather  tiian  by  the  States,  and  under 
the  power  herein  granted  Congress  may  place  crimes  com- 
mitted on  such  waters  in  any  category  it  pleases,  and  cause 
them  to  be  punished  accordingly. 

Offenses  Against  the  Laws  of  Nations. — These  are  the  acts, 
whether  committed  on  the  high  seas  or  on  the  land,  which 
tend  to  interrupt  the  peaceful  relations  between  the  United 
States  and  foreign  nations.  International  law  is  a  rather 
loose  code  of  principles,  unwritten  except  in  commentaries, 
tending  to  promote  harmony  among  civilized  nations.  It  is 
for  the  best  interests  of  the  United  States  that  these  principles' 
be  observed,  and  that  Congress  should  have  the  power  to 
punish  offenses  against  these  principles,  and  to  define  and 
make  punishable  other  offenses  not  included  in  the  inter- 
national code.  Thus  the  so-called  neutrality  laws  forbid 
citizens  of  a  neutral  nation  to  equip  vessels  of  war  or  bodies 
of  troops  to  aid  a  belligerent  nation ;  and  Congress  has  passed 
acts  to  forbid  filibustering,  and  has  made  it  a  serious  offense 
to  organize  or  to  set  on  foot  armed  expeditions  against 
friendly  nations. 

Section  8.  Clause  11. — To  declare  war,  grant  letters  of 
marque  and  reprisal,  and  make  rules  concerning  captures 
on  land  and  water; 

War;  Declaration  of,  etc. — The  evident  purpose  of  this 
clause  is  to  prevent  the  United  States  from  engaging  in  war 
with  other  nations  without  the  consent  of  the  people,  through 
their  Eepresentatives  in  Congress  assembled.    In  England  the 

•"U.  S.  V.  Palmer,  3  Wheaton,  610. 


122  COXSTITUTIONAL    LaTV 

power  to  declare  war  is  in  the  Crown,  but  that  power  is  limited 
by  the  fact  that  Parliament  alone  may  make  appropriations. 
In  the  United  States  the  war  power  is  somewhat  limited,  for, 
althoup-h  Congress  may  declare  war  and  appropriate  money  to 
carry  it  on,  no  Congress  can  make  appropriations  for  that 
purpose  for  a  longer  term  than  two  years.^ 

A  state  of  war  may  exist,  however,  without  any  declaration 
by  Congress,  either  through  insurrection,  or  by  the  hostile  acts 
of  foreign  nations.  When  such  a  state  of  war  exists,  the  people 
and  the  courts  of  the  country  are  bound  to  take  notice  of  the 
fact'";  and  the  President  is  authorized  to  take  steps  to  sup- 
press the  insurrection  or  to  repel  the  invasion.*" 

Congress  has  declared  war  twice:  in  1812  against  Great 
Britain ;  in  1898  against  Spain.  The  war  against  Mexico,  in 
1846,  was  recognized  as  already  existing  by  the  hostile  acts 
of  that  country.  The  conflict  between  the  North  and  the 
South,  although  it  assumed  the  magnitude  of  war,  was  in 
reality  nothing  but  an  insurrection.  The  insurrectionists 
were  recognized  by  some  foreign  nations  as  belligerents,  but 
never  as  an  independent  people.  The  conflict  began  while 
Congress  was  not  in  session,  and  the  duty  of  coping  with  it  at 
first  fell  entirely  on  the  President.  He  could  not  declare  war, 
but  under  the  authority  to  put  down  insurrections  he  pro- 
ceeded to  order  out  the  militia  and  to  issue  calls  for  volun- 
teers. Later,  when  Congress  assembled,  it  recognized  the  acts 
of  the  Executive,  and  empowered  him  to  take  further  steps 
to  put  down  the  rebellion.  In  this  connection  an  interesting 
constitutional  question  arose :  Did  the  acts  of  the  President 
in  attempting  to  put  down  the  rebellion  before  Congress  had 
assembled  and  declared  war  to  exist  amount  to  war  in  fact? 
If  so,  then  the  capture  of  certain  vessels  attempting  to  run  the 

<"  Constitution,  1,  8,  12. 

'"The  Prize  Cases,  2  Black,  635. 

"  Statute  passed  in  1795. 


The  Powers  of  Congress  123 

blockade  established  by  the  President  was  lefjal ;  otherwise 
it  was  not.  The  Supreme  Court  decided  in  the  affirmative: 
on  the  ground  that,  in  order  to  constitute  war,  it  is  not  neces- 
sary for  both  parties  to  be  sovereign  nations;  but  war  may 
exist  where  one  belligerent  claims  sovereign  rights  against 
the  other." 

War  Powers  of  Congress. — In  the  event  of  war  Congress 
may  wield  all  those  extreme  powers  that  are  regarded  as  lawful 
by  the  civilized  world.  Thus  Congress  may  acquire  territory 
by  conquest"'  it  may  try  offenses  by  military  commissions 
where  civil  law  has  been  displaced  by  warlike  operations  *" ;  and 
it  may  set  up  provisional  courts  in  conquered  territory."  It 
follows  therefore  that  warlike  acts  by  private  parties,  un- 
authorized by  the  government,  are  illegal.  Hence  irregular 
bands  of  marauders  are  likely  to  be  treated  if  captured  as  law- 
less banditti;  and  those  who  prey  on  the  enemy's  commerce 
without  lawful  authority  are  rightfully  classed  as  pirates. 
Furthermore,  war  between  two  nations  makes  private  inter- 
course between  the  inhabitants  thereof  unlawful.  The  in- 
habitants of  one  are  the  enemies  of  the  other  ( Opinions  of  the 
Attorney  General,  Vol.  11,  p.  301),  and  all  contracts  between 
hostile  parties  are  absolutely  void.^ 

No  State,  of  course,  can  declare  war  or  make  captures. 
Such  power  is  exclusive  in  Congress.  For  subduing  internal 
disorders,  however,  a  State  may  use  force  to  any  extent  within 
her  means,  even  to  marshaling  State  troops  in  the  field,  as 
though  a  real  war  were  in  progress. 

Letters  of  Marque  and  Reprisal. — A  letter  of  marque  is  a 
commission  given  by  a  civilized  government  to  a  private  ship 

«=The  Prize  Cases,  2  Black,  635. 
"'■Am.  Ins.  Co.  v.  Canter.   1  Peters,  511,  541. 
•"  Ex  parte  Milligan.    4  Wallace,  2. 
•=«  The  Grapeshot.    9  Wallace,  129. 

"'Kent's  Commentaries,  67;  Griswold  v.  Waddington.  15  Johns. 
(N.  Y.),  57. 


124  Constitutional  Law 

authorizing  it  to  attack  ships  of  the  enemy,  A  ship  bearing 
such  a  commission  is  commonly  termed  a  privateer,  and  its 
operations  are  generally  carried  on  against  the  enemy's  com- 
merce. Privateering  has  usually  accompanied  organized  war- 
fare ;  but  letters  of  marque  have  been  given  to  individuals  when 
no  war  existed,  allowing  them  to  make  reprisal,  that  is,  to  take 
private  redress  against  foreign  subjects  for  private  injuries 
received.  But  this  is  rarely  done  now.  During  the  Revolu- 
tionary War  and  the  War  of  1812  many  American  privateers 
sailed  the  seas,  doing  extensive  damage  to  England's  com- 
merce. During  the  Civil  War  the  Southern  Confederacy 
issued  such  commissions,  but  the  Northern  Government  did 
not.  Although  Congress  authorized  letters  of  marque,  Presi- 
dent Lincoln  did  not  issue  any.  In  the  war  with  Spain  in 
1898  the  United  States  did  not  grant  commissions  for  private 
warfare.  At  the  treaty  of  Paris,  in  1856,  certain  European 
powers  agreed  to  abolish  privateering.  The  United  States 
did  not  accede  to  that  agreement;  but  so  strong  is  modern 
public  sentiment  against  private  warfare  that  it  is  doubtful 
if  Congress  ever  again  legalizes  the  practice. 

Rules  Concerning  Captures. — It  rests  with  Congress  to  de- 
termine what  shall  be  done  with  men,  or  ships,  or  cargoes,  or 
property  of  every  sort  captured  in  time  of  war.  Until  Con- 
gress has  acted,  no  private  citizen  can  enforce  rights  of 
forfeiture,  even  with  judicial  assistance.™ 

Section  8,  Clause  12. — To  raise  and  support  armies,  but 
no  appropriation  of  money  to  that  use  shall  be  for  a 
longer  term  than  two  years; 

Section  8,  Clause  13. — To  provide  and  maintain  a  navy; 

Section  8,  Clause  14. — To  make  rules  for  the  govern- 
ment of  the  land  and  naval  forces; 

The  Army  and  the  Navy. — Clauses  12, 13,  and  14,  since  they 
are  inseparably  connected  in  thought,  may  well  be  considered 

'•Brown  v.  United  States,  8  Cranch,  110. 


The  Powebs  of  Congress  125 

together.  Without  these  clauses  Congress  would  no  doubt 
have  power  to  raise  troops  and  equip  ships  to  carry  on  war, 
for  otherwise  the  power  to  declare  war  would  be  useless.  But 
from  the  power  to  declare  war  one  could  hardly  deduce  the 
authority  to  maintain  troops  and  ships  of  war  in  times  of 
peace.  Hence  it  is  fair  to  assume  that  these  clauses  are  meant 
to  provide  for  the  regular  navy  and  the  standing  army. 

Under  the  Articles  of  Confederation  Congress  was  given  no 
authority  to  raise  armies  in  times  of  peace ;  nor  could  any  such 
authority  be  deduced  from  its  rather  nominal  power  to  declare 
war.  Standing  armies  and  navies  were  too  suggestive  of 
militarism  and  monarchism  to  be  provided  for  by  a  nation 
that  had  just  rid  itself  of  both  evils.  Accordingly,  whatever 
troops  were  maintained  were  organized,  drilled  and  equipped 
by  the  various  States;  there  was  no  national  military  organiza- 
tion. The  system  was,  as  Judge  Story  points  out,  "  equally  at 
war  with  economy,  efficiency  and  safety."  " 

Under  the  Constitution  the  power  of  Congress  to  raise  and 
maintain  an  army  or  a  navy  is  unlimited,  except  in  respect  to 
the  length  of  time  for  making  appropriations  to  the  use  of  the 
army;  and  such  limitation  applies  only  to  the  army.  Congress 
may  make  either  force  so  large  as  to  become  burdensome,  or 
it  may  abolish  both  altogether.  Thus  far,  however,  the  good 
sense  of  the  people's  Representatives,  the  comparative  isolation 
of  the  United  States,  and  its  consequent  freedom  from  Euro- 
pean discords  have  kept  Congress  from  one  extreme,  while 
potent,  obvious  reasons  have  kept  it  from  the  other.  It  has 
been  the  policy  of  the  United  States  since  1799  to  maintain 
a  regular  army  of  moderate  size,  but  in  respect  to  the  navy  its 
policy  has  undergone  much  fluctuation. 

The  Navy  Since  the  Revolution. — From  the  close  of  the 
Revolutionary  War  until  1794  the  United  States  had  no  navy 
— at  least,  none  worth  tlie  name.  In  that  year  trouble  with 
Algiers  impelled  Congress  to  pass  a  law  whicli  provided  for 

"  Story's  Constitution.  Sec.  1179. 


126  Constitutional  Law 

the  construction  of  six  fri,2;ates.  This  was  the  beginning  of 
the  American  Navy.  Naval  matters  were  then  managed  by 
the  War  Department,  and  they  continued  to  be  so  managed 
until  1798,  when  Congress  created  the  office  of  Secretary  of 
the  Navy.  Naval  success  in  the  war  with  France,  1799-1801, 
and  greater  success  in  the  War  of  1813,  gave  great  impetus 
to  the  navy,  and  from  the  end  of  the  latter  struggle  until 
1861  Congress  could  muster  a  fair  armament  on  the  sea.  The 
necessities  of  the  Civil  War  caused  a  vast  increase  in  both 
ships  and  personnel,  but  when  the  war  ended  Congress  entered 
on  a  policy  of  retrenchment:  the  na\7'  was  allowed  to  decay, 
and  in  a  few  years  the  naval  list  contained  hardly  one  re- 
spectable fighting  ship.  In  1881  Congress  awoke  to  the  fact 
that  the  navy  was  at  its  lowest  ebb  since  the  Eevolution,  and 
set  to  work  to  remedy  conditions.  In  1883  Congress'  provided 
for  the  construction  of  several  vessels  of  modem  design  and 
armament;  and  since  then  it  has  added  steadily  to  the  naval 
strength  of  the  country,  until  in  1911  the  United  States  Navy 
took  second  place  among  the  navies  of  the  world.  Such  in 
brief  has  been  the  history  of  the  American  Navy  since  the 
Eevolution. 

Military  Powers  of  Congress. — Under  the  power  to  raise 
and  support  armies  Congress  may  resort  to  any  means  which 
exigency  demands.  When  other  means  fail  the  draft  act  may 
undoubtedly  be  resorted  to  as  a  means  of  securing  men  for 
the  service.  Congress  may  appropriate  money  for  military 
equipments ;  for  the  pay,  transportation,  rations,  and  clothing 
of  troops;  for  the  purchase  or  manufacture  of  arms  and 
ammunition;  for  the  support  of  hospital,  engineer,  and  in- 
struction corps ;  for  the.  construction  of  forts,  arsenals,  bar- 
racks, and  defenses  of  all  kinds;  for  the  establishment  and 
maintenance  of  hospitals,  and  of  schools  for  military  instruc- 
tion. In  short,  everything  necessary  or  incidental  to  the 
preparation,  equipment,  and  maintenance  of  a  national  mill- 


The  Powers  of  Congress  127 

tary  force  of  any  size,  or  to  the  building,  fitting  out  and  sup- 
port of  a  national  navy,  is  in  the  hands  of  Congress  exclusively. 
Not  even  the  President  may  attempt  to  maintain  a  navy,  or  to 
keep  on  foot  a  standing  army,  when  in  the  opinion  of  the 
Federal  legislature  it  is  not  necessary. 

Appropriations. — Congress  is  not  limited  by  the  Constitu- 
tion in  appropriating  money  for  the  navy,  but  it  cannot  pro- 
vide for  the  army  for  a  longer  term  than  two  years.  As  a 
matter  of  custom  Congress  makes  yearly  appropriations  for 
each.  In  1911  Congress  appropriated  for  the  army  $95,440,- 
667.55;  for  the  navy  $131,410,568.30.  These  sums  do  not 
include  money  expended  on  forts  and  fortifications,  and  on 
the  ]\Iilitary  Academy. 

Military  Rules. — Under  the  power  conferred  by  Clause  14, 
Congress  has  from  time  to  time  formulated  rules  governing 
the  conduct  of  men  in  the  military  and  naval  service  of  the 
United  States,  until  the  Army  and  the  Naval  Regulations 
fill  rather  capacious  volumes.  Some  of  these  rules  are  appli- 
cable to  men  in  military  circles  only;  others  express  definitely 
rules  that  commonly  govern  civil  conduct. 

The  power  to  make  rules  carries  with  it  the  power  to  enforce 
them,  and  to  punish  infractions  thereof.  Congress  may  there- 
fore establish  military  courts  for  the  trial  of  military  offenders. 
Hence,  one  who  joins  the  army  or  the  navy,  either  voluntarily 
or  by  draft,  puts  himself  out  of  the  pale  of  civil  authority. 
Thereafter  he  is  governed  by  military  law,  and  he  may  be 
punished  by  a  military  court,  commonly  called  court-martial, 
whose  judgments  are  just  as  binding  as  the  judgments  of  other 
courts.  All  military  courts,  however,  are  strictly  criminal  in 
their  nature,  and  cannot  decide  pro])erty  rights  or  political 
questions.  The  jurisdiction  of  such  courts,  although  ex- 
clusive over  matters  properly  before  them,  may  be  enquired 
into  by  civil  courts,  and  if  jurisdiction  is  found  wanting  the 
civil  courts  may  discharge  a  person  improperly  held." 

"In  re  Grimlcy.  137  U.  S.,  147. 


128  Constitutional  Law 

Martial  Law. — Military  law  must  not  be  confounded  with 
martial  law.  The  former  is  a  body  of  positive  rules;  the  latter 
is  in  reality  the  suspension  of  all  civil  law.  Martial  law  is  a 
sort  of  war  measure,  which  can  legally  be  called  into  action 
only  in  times  of  great  exigency,  or  as  a  means  of  waging  war. 
When  a  district  is  under  martial  law  every  person  in  it  becomes 
subject  to  military  rules,  and  to  the  mandates  of  military 
courts.  This  so  subverts  the  usual  order  of  things,  and  makes 
possible  such  great  and  serious  abuses,  that  it  is  justified  only 
when  civil  law  is  powerless  to  act,  and  the  situation  demands 
military  control.  The  weight  of  opinion  seems  to  be  that  the 
power  to  declare  martial  law  rests  in  the  President,  as  com- 
mander-in-chief of  the  military  and  naval  forces  of  the  United 
States.    He  may,  however,  delegate  it  to  commanding  officers'. 

Section  8,  Clause  15. — To  provide  for  calling  forth  the 
militia  to  execute  the  laws  of  the  Union,  suppress  insur- 
rections, and  repel  invasions; 

Sectien  8,  Clause  16. — To  provide  for  organizing,  arming, 
and  disciplining  the  militia,  and  for  governing  such  part 
of  them  as  may  be  employed  in  the  service  of  the  United 
States,  reserving  to  the  States  respectively  the  appoint- 
ment of  the  officers,  and  the  authority  of  training  the 
militia  according  to  the  discipline  prescribed  by  Congress; 

The  Militia  are  the  citizen  soldiers  of  the  country,  who  are 
liable  to  be  called  into  service  in  cases  of  emergency.  Theo- 
retically every  male  citizen  between  the  ages  of  18  and  45  is 
a  militiaman;  but  in  common  parlance  the  word  militia  in- 
cludes only  those  organized  and  uniformed  bodies  of  citizen 
soldiers  maintained  by  the  respective  States,  as  distinguished 
from  the  regular  army  of  the  United  States.  The  control  of 
the  militia  illustrates  in  a  measure  the  concurrent  powers  of 
the  nation  and  the  States.  In  times  of  peace  the  militia  are 
under  State  authority,  except  when  participating  in  ma- 
neuvers with  the  regular  army.    They  are  drilled  and  officered 


The  Powers  of  Congress  129 

by  Rtato  officials,  and  may  be  puhjcotod  to  special  defensive 
duty  within  the  State  at  the  command  of  the  Governor.  As 
part  of  the  State  constabulary  members  of  the  militia  may 
be  tried  and  punished  for  ofTenses  by  State  courts-martial." 
If  the  United  States  does  not  provide  for  any  special  system 
of  tactics  for  the  militia,  each  State  may  adopt  a  system  for 
itself. 

On  the  other  hand,  Congress  may  provide  a  special  mode  of 
training  for  militiamen,  which  must  be  adopted  by  the  States ; 
and  in  times  of  invasion  or  rebellion  the  President  may  call 
them  into  the  service  of  the  country  at  large.  When  this 
is  done  they  form  a  ])art  of  the  regular  army,  and  as  such 
may  be  subject  to  the  orders  of  regular  military  officers,  and 
may  be  tried  for  offenses  by  courts-martial. 

Legislation  Concerning  the  Militia. — Congress  took  early 
action  in  respect  to  the  militia.  In  1792  (Rev.  Stat.,  1625- 
1629)  Congress  provided  for  the  organization  of  the  militia  of 
the  several  States;  and  in  1795  (Eev.  Stat.,  1642),  it  author- 
ized the  President  to  call  out  the  militia  for  the  general  pur- 
poses of  executing  the  laws  of  the  nation,  suppressing  in- 
surrections, and  repelling  invasions.  It  has  been  judicially 
decided  that  when  the  President  acts  under  this  authority  his 
judgment  cannot  be  questioned."  The  power  to  act  is  ex- 
clusive in  him,  and  he  alone  is  responsible.  To  warrant  the 
President's  action  in  these  cases,  it  is  not  necessary  that  in- 
vaders be  actually  present  in  the  country,  or  that  an  insurrec- 
tion be  actually  in  progress;  he  may  act  whenever  in  his 
judgment  either  danger  threatens.  But  since  tlie  laws  of  the 
Union  have  effect  only  within  the  boundaries  of  the  country, 
and  since  invasion  and  rebellion  can  take  place  only  within 
such  bouiularies,  it  follows  that  not  even  the  Chief  Executive 
can  send  the  militia  for  service  out  of  the  country.     The 

"Houston  V.  Moore,  5  Wheaton,  1. 
"  Martin  v.  Mott,  12  Wheaton,  19. 
9 


130  Constitutional  Law 

service  of  the  members  of  the  militia  when  called  out  is 
limited  by  law  (32  Stat,  at  Large,  776)  to  nine  months.  Con- 
gress may,  however,  under  the  power  to  raise  armies,  resort  to 
the  draft  act,  and  thus  enroll  into  the  regular  army  even 
members  of  the  organized  militia,  as  well  as  plain  civilians. 
When  this  is  done,  the  restrictions  noted  above  do  not  apply. 
The  same  is  true  of  course  when  members  of  the  militia  enlist 
voluntarily  in  the  army. 

National  Service  of  the  Militia. — In  the  history  of  the 
United  States  the  organized  militia  have  been  ordered  out  by 
the  President  three  times:  in  1794,  to  put  down  the  Whiskey 
Rebellion,  an  insurrection  in  some  of  the  western  counties  of 
Pennsylvania;  in  1812,  to  repel  invasion;  and,  lastly,  in  1861, 
to  put  down  the  rebellion  in  the  Southern  States.  In  the  first 
instance,  the  President  acted  by  virtue  of  the  Act  of  1792 ;  in 
the  other  two  cases,  by  the  same  act  as  amended  in  1795. 
This  act  has  never  been  repealed.  In  the  war  with  Mexico, 
1846,  and  again  in  the  war  with  Spain,  1898,  it  was  expedient 
to  send  troops  out  of  the  country,  and  militia  regiments  were 
therefore  not  called  out.  All  who  participated  in  those  wars 
were  either  regular  troops  or  volunteers. 

Organizing,  Arming,  etc. — By  the  authority  of  Clause  16, 
Congress  early  provided  for  a  national  militia.  If  Congress 
had  not  acted  the  States'  would  have  been  at  liberty  to  do  so. 
By  act  of  Congress,  1792,  every  able-bodied  male  citizen,  with 
certain  exceptions,  is  made  available  for  military  duty,  or  a 
member  of  the  militia  of  the  respective  States  and  Territories. 
This  was  amended  in  1903  (32  Stat,  at  Large,  775)  to  include 
all  aliens  who  have  declared  their  intention  of  becoming 
citizens.  Congress  provided,  furthermore,  by  the  same  act, 
that  the  militia  should  consist  of  two  bodies:  1st,  the  or- 
ganized militia,  known  as  the  national  guard  of  the  respective 
States  and  Territories;  2d,  the  reserve,  or  unorganized, 
militia,  consisting  of  all  other  male  citizens  who  may  be  liable 


7 UK  Powers  of  Congress  131 

to  military  duty.  The  national  guard,  although  organized  by 
act  of  Congress,  armed  and  equipped  by  the  national  govern- 
ment, and  drilled  in  tactics  prescribed  by  the  same  authority, 
is  composed  of  State  organizations.  Tlicse  are  commanded 
by  State  officers  and  are  amenable  to  State  authority.  But 
when  called  into  active  service  by  the  President  they  become 
national  troops  in  fact,  and  are  then  entitled  to  the  same  pay 
and  allowances,  and  the  same  general  treatment  accorded  to 
members  of  the  regular  army.  The  members  are  entitled  to 
pensions  if  disabled  while  in  the  performance  of  duty  (33  Stat, 
at  Large,  779).  They  are  subject  to  court-martial;  but  the 
trial  court  in  the  case  of  militiamen  must  be  composed  of 
militia  officers  (idem,  776). 

Section  8.  Clause  17. — To  exercise  exclusive  legislation 
in  all  cases  whatsoever,  over  such  district  (not  exceeding 
ten  miles  square)  as  may,  by  cession  of  particular 
States  and  the  acceptance  of  Congress,  become  the  seat 
of  the  Government  of  the  United  States,  and  to  exercise 
like  authority  over  all  places  purchased  by  the  consent 
of  the  legislature  of  the  State  in  which  the  same  shall 
be,  for  the  erection  of  forts,  magazines,  arsenals,  dock- 
yards, and  other  needful  buildings;  and. 

The  District  of  Columbia. — The  original  District  of  Co- 
lumbia was  a  tract  of  land  ten  miles  square  ceded  to  the 
United  States  by  the  States  of  Maryland  and  Virginia  in  1788 
and  1789.  Later,  in  1846,  that  part  lying  soutli  of  the 
Potomac  River  was  retroceded  to  Virginia.  The  present  dis- 
trict therefore  contains  rather  less  than  the  original,  about 
70  square  miles  in  all,  and  lies  wholly  within  the  original 
boundaries  of  IMaryland.  The  government  of  the  District  is 
peculiar,  in  that  the  people  have  no  voice  in  electing  their 
legislators.  Congress  acts  as  the  District's  local  legislature. 
Its  daily  government  is  administered  by  a  board  of  three  com- 
missioners: two  appointed  by  the  President  and  the  Senate 


132  COXSTITUTIONAL    LaW 

for  three  years;  and  the  third,  an  officer  of  the  Engineer  Corps 
of  the  army,  detailed  hy  the  President  alone.  These  com- 
missioners appoint  all  minor  officials,  and  submit  each  year 
a  detailed  estimate  of  the  District's  expenses  to  the  Secretary 
of  the  Treasury.  When  this  estimate  has  been  approved  by 
Congress,  one-half  of  the  amount  called  for  is  paid  out  of 
the  national  treasury,  the  rest  is  assessed  on  the  taxable 
property  in  the  District.  This  method  of  government  is  not 
in  accordance  with  American  ideas,  for  it  is  a  denial  of  the 
right  of  self-government;  but  like  the  control  over  Territories, 
it  must  be  regarded  as  an  exception  arising  out  of  necessity. 
Without  the  power  of  exclusive  control  over  the  seat  of  gov- 
ernment Congress  could  not  be  assured  of  its  freedom.  Dur- 
ing a  very  short  period,  from  1871  to  1874,  the  District  had  a 
local  self-government,  resembling  that  of  a  Territory."  But 
the  right  of  Congress  thus  to  delegate  the  general  legislative 
authority  conferred  on  it  by  the  Constitution  is  very  doubtful. 

Lands  Purchased  for  Forts,  etc. — The  power  of  the  United 
States  to  exercise  authority  over  all  places  purchased  by  the 
consent  of  the  State  legislatures  for  certain  needful  purposes 
is  exclusive.^*  It  follows  therefore  that  the  inhabitants  of  such 
places  cease,  by  operation  of  law,  to  be  citizens  of  the  State 
from  which  the  land  was  purchased,  and  can  exercise  no  civil 
or  political  rights  under  the  State.  Federal  laws  there  are 
supreme.  Not  even  crimes  committed  there  are  punishable 
under  State  laws,  but  always  under  Federal  statutes." 

The  right  to  acquire  property  is,  however,  naturally  incident 
to  sovereignty  and  cannot  be  made  to  depend  on  the  good  will 
of  State  legislatures.'*  The  United  States  as  a  sovereign  power 
can  therefore  acquire  land  for  needful  purposes  with  or  with- 

"  16  Stat,  at  Large,  419;  18  Stat,  at  Large,  116. 
"United  States  v.  Cornell,  2  Mason  (U.  S.  Cir.  Ct),  60. 
"  Kelly  V.  United  States,  27  Fed.  Rep.,  616. 
'•  Prin.  Const.  Law,  Cooley,  104,  Note  4. 


The  Powers  of  Congress  133 

out  legislative  consent.  It  may  take  without  such  consent 
through  the  process  of  condemnation  kno\vTi  as  eminent  do- 
main (see  p.  262)  ;  or  it  may  claim  title  on  the  ground  of 
original  proprietorship.  But  over  places  thus  acquired  Con- 
gress may  not  exercise  exclusive  control :  State  authority  is  not 
ousted,  provided  the  exercise  of  it  is  not  inconsistent  with  the 
public  purposes  for  which  the  land  was  acquired."  Further- 
more, a  State  may  cede  land  to  the  United  States,  and  in  so 
doing  make  any  reasonable  restrictions  or  conditions.  If,  for 
example,  a  State  reserves  the  right  to  serve  legal  papers  within 
such  ceded  territory,  or  to  tax  private  property  therein,  the 
acceptance  of  the  grant  by  the  United  States  will  imply  con- 
sent to  such  reservations.** 

Section  8,  Clause  18. — To  make  all  laws  which  shall  be 
necessary  and  proper  for  carrying  into  execution  the  fore- 
going powers,  and  all  other  powers  vested  by  this  Con- 
stitution in  the  Government  of  the  United  States,  or  in 
any  department  or  officer  thereof. 

Implied  Powers. — This  clause  merely  declares  what  would 
be  otherwise  necessarily  implied.  The  common  maxim  that 
the  end  Justifies  the  means  applies  with  force  to  the  Constitu- 
tion, for  wherever  that  instrument  gives  to  Congress  a  general 
power  to  act,  the  particular  powers  necessary  for  the  perform- 
ance of  the  act  are  included  by  implication.  Why  then  was 
this  clause  inserted  in  the  Constitution?  Presumably  it  was 
to  remove  uncertainty,  and  to  avoid  any  doubt  which  inge- 
nuity, jealousy  or  specious  reasoning  might  raise  on  the 
subject. 

The  framers  of  the  Constitution  might  have  done  several 

"People  V.  Godfrey,  17  Johns.  (N.  Y.),  225.  Ft.  Leavenworth  v. 
Lowe.  114  U.  S.,  525. 

~Ft.  Leavenworth  R.  R.  Co.  v.  Lowe,  114  U.  S.,  525;  16  Opinions 
of  Attorney-General,  592. 


134  Constitutional  Law 

other  things.  They  might  have  made  the  Constitution  an 
instrument  of  express  powers  only,  prohibiting  Congress  from 
doing  everything  not  expressly  mentioned — in  which  case  the 
Constitution  could  be  so  strictly  construed  as  to  disarm  it  of 
all  real  authority.  They  might  have  attempted  an  enumera- 
tion of  all  the  powers  that  Congress  would  be  likely  to  find 
use  for— a  quite  impossible  task.  Lastly,  they  might  have 
omitted  Clause  18  altogether— in  which  event,  if  we  would 
have  the  Constitution  anything  but  a  splendid  nullity,  all  the 
auxiliary  powers,  as  aforesaid,  would  have  followed  by  neces- 
sary implication.  Rather,  they  chose  first  to  enumerate  cer- 
tain general  powers  of  Congress,  and  to  conclude  with  the 
broad  and  sweeping  statement  expressed  in  the  present  clause; 
the  obvious  import  of  which  is  that  Congress  shall  have  all  the 
incidental  and  instrumental  powers,  necessary  and  proper  to 
carry  into  effect  all  those  powers  specifically  mentioned. 

"  Necessary  and  Proper." — These  rather  general  terms  have 
been  judicially  determined  to  mean  appropriate  and  fitting, 
rather  than  absolutely  needful  and  requisite,  for  the  purport 
of  the  clause  is  to  enlarge,  not  to  diminish,  the  powers  of  the 
government."  Whenever  a  question  comes  up  respecting  the 
constitutionality  of  a  power  exercised  by  Congress,  a  power  not 
expressly  granted,  the  query  arises.  Is  it  properly  incident 
to  an  express  power,  and  reasonably  necessary  to  its  execution  ? 
In  other  words,  is  it  consistent  with  the  spirit  of  the  Constitu- 
tion? If  so,  and  not  among  those  acts  which  are  expressly 
forbidden  (Article  1,  Section  9),  it  is  constitutional;  if  it  is 
not,  then  Congress  has  no  authority  to  act. 

A  vast  number  of  legislative  acts  illustrate  this  doctrine  of 
incidental  powers.  The  enumerated  powers  of  Congress  are 
but  few;  yet  upon  what  thousands  of  things  has  not  that 
body  legislated,  for  which  the  Constitution  gives  no  express 
authority  ?    Under  the  power  to  regulate  commerce  Congress 

«  McCuUoch  V.  Maryland,  4  Wheat.,  413. 


The  Powers  of  Congress  135 

provided  for  the  excliLsion  of  Chinese  laborers,"  and  in  1807 
})ractically  destroyed  American  commerce  by  the  unwise  Em- 
bargo Act.  Although  the  Constitution  nowhere  expressly  gives 
Congress  the  right  to  exclude  anybody  from  the  country,  or  to 
annihilate  commerce,  these  acts  were  justified  as  reasonable 
and  appropriate  means  of  regulating  commerce.  The  Con- 
stitution does  not  grant  to  Congress  the  right  to  acquire 
territory  out  of  the  limits  of  the  United  States;  yet  Congress 
has  so  done  (Louisiana,  Alaska,  etc),  and  the  acquisitions 
have  been  justified  on  the  ground  that  to  grow  and  expand 
is  properly  incident  to  sovereignty,  and  reasonably  necessary 
to  the  common  defense  and  general  welfare.  The  Constitution 
gives  no  direct  authority  for  the  establishment  of  national 
banks,  or  to  make  paper  money  legal  tender ;  but  Congress  has 
done  both  as  reasonable  means  of  carrying  on  the  fiscal  opera- 
tions of  the  government,  for  which  authority  is  given.  It 
might  be  possible  to  fill  volumes  with  illustrations  of  acts 
done  under  the  implied  authority  of  the  Constitution,  but 
these  conspicuous  examples  are  sufficient.  One,  however,  who 
wishes  a  fuller  discussion  of  this  doctrine  of  implied  powers, 
will  find  it  in  the  great  case  of  McCulloch  v.  Md.,  4  Wheaton's 
Eeports,  413.  This  case  settled  forever  the  question  of  power 
by  implication,  and  presents  the  most  exhaustive  treatment  of 
it  on  record.  The  opinion  in  that  famous  case  was  written  by 
Chief  Justice  John  Marshall  in  1819.  It  was  owing  to  the 
broad  and  liberal  interpretations  of  that  remarkable  jurist 
that  the  Constitution  early  came  to  be  regarded  as  an  elastic 
instrument,  rather  than  the  rigid,  unyielding  document  that 
a  strict  constructionist  might  have  made  of  it. 

"The  Chinese  Exclusion  Cases,  130  U.  S.,  581;  149  U.  S.,  698. 


CHAPTER  IV 

LIMITATIONS  ON  CONGRESS  AND  THE  STATES 
Article  1,  SECTio>fs  9-10 


LIMITATIONS  OX  CONGRESS 

Article  1 

Section  9,  Clause  1. — The  migration  or  importation  of 
such  persons  as  any  of  the  States  now  existing  shall  think 
proper  to  admit,  shall  not  be  prohibited  by  the  Congress 
prior  to  the  year  one  thousand  eight  hundred  and  eight, 
but  a  tax  or  duty  may  be  imposed  on  such  importation, 
not  exceeding  ten  dollars  for  each  person. 

We  have  enumerated  and  discussed  to  some  extent  the 
powers  of  Congress.  We  have  seen  that  the  Constitution  has 
expressly  granted  to  Congress  some  rather  general  powers, 
and  that  the  grant  of  those  powers  necessarily  implies  the 
right  to  exercise  other  powers.  It  is  plain  therefore  that  Con- 
gress may  legitimately  exercise  any  power  expressly  granted 
to  it,  or  any  power  necessarily  implied  by  such  grant — except 
in  respect  to  those  things'  which  the  Constitution  expressly 
prohibits  to  Congress.  What  tliese  express  limitations  are 
forms  the  subject  of  the  present  chapter. 

The  Slave  Trade. — Section  9,  Clause  1,  when  written,  had 
direct  reference  to  the  slave  trade.  Among  the  members  of 
the  Constitutional  Convention  there  was  a  disposition  to  end 
the  trade  at  once;  but  opposition  among  the  Southern  dele- 
gates was  strong,  and  the  States  of  South  Carolina  and 
Georgia  even  made  the  limitation  in  the  present  clause  a  con- 
dition precedent  to  their  joining  the  Union.  Section  9,  Clause 
1,  therefore,  is  in  the  nature  of  a  compromise.  The  limitation 
here  is  purely  congressional,  obviously  leaving  to  the  States 
for  a  short  period  the  right  to  prohibit  the  trade  or  not  as  they 
chose.  It  is  a  notewortliy  fact  that  "Massachusetts  had  already 
prohibited  slavery,  and  before  the  limitation  on  Congress  had 


140  Constitutional  Law 

expired  several  more  liad  done  likewise.  Twenty  years  after 
the  adoption  of  the  Constitution  Congress  exercised  its  power 
to  abolish  the  traffic  in  slaves,  by  passing  a  prohibitory  act, 
March  2,  1807,  to  take  effect  on  January  1,  1808.  With  the 
passage  of  that  act  the  restrictive  part  of  the  clause  under  dis- 
cussion became  once  and  for  all  a  dead  letter  in  the  Constitu- 
tion. Except  for  this  restriction,  Congress,  at  any  time  after 
the  adoption  of  the  Constitution,  might  have  abolished  the 
slave  trade  as  a  reasonable  regulation  of  commerce.  It  is 
curious  to  note,  in  passing,  that,  although  there  are  several 
allusions  to  slavery  in  the  Constitution,  neither  the  word  slave 
nor  slave  trade  is  mentioned  in  the  original  instrument.*  The 
words  slavery  and  slave  do  occur  in  the  13th  and  14th  Amend- 
ments respectively. 

The  words  migration  and  importation,  as  used  in  this  clause, 
have  slightly  different  applications.  The  first  applies  to 
voluntary  comers,  the  latter  to  involuntary  comers.  It  was 
held  in  the  case  of  Gibbons  v.  Ogden,  9  Wheaton,  206,  that  the 
power  to  reg-ulate  commerce  applied  equally  to  vessels'  engaged 
in  transporting  men  who  pass  voluntarily  from  place  to  place, 
and  those  engaged  in  transporting  men  who  pass  involuntarily. 
Neither  migration  nor  importation  could  be  prohibited  prior 
to  1808.  The  right  to  levy  a  tax  of  ten  dollars  on  the  importa- 
tion of  persons  has  never  been  exercised.* 

Section  9,  Clause  2. — The  privilege  of  the  writ  of  habeas 
corpus  shall  not  be  suspended,  unless  when  in  cases  of 
rebellion  or  invasion  the  public  safety  may  require  it. 

The  Writ  of  Habeas  Corpus. — The  writ  of  habeas  corpus  is 
a  written  order  issued  by  a  court  directing  that  a  person  in 

^Constitution,  4,  2,  3;  1,  2,  3. 

^  The  masters  of  immigrant  ships  are  required  to  pay  a  tax  of 
$4.00  per  head  for  every  immigrant  brought  into  the  United  States. 
34  Stat,  at  Large,  898;  see  p.  99. 


Limitations  ox  Congress  141 

confinement  be  brought  before  it  that  tlic  legality  of  the  con- 
finement may  be  determined.  The  name  comes  from  the 
phraseology  of  the  ancient  form  of  the  writ,  the  words  habeas 
corpus  meaning  "  you  may  have  the  body."  The  writ  is  never 
issued  except  on  petition,  either  by  the  person  in  confinement, 
or  by  some  one  acting  for  him.  The  petition,  which  should  be 
in  writing  and  verified  by  affidavit,  presents  the  facts  in  the 
case,  to  wit:  In  whose  custody  the  prisoner  is  detained  and 
by  what  authority,  if  any ;  and  ends  with  a  prayer  for  an  im- 
mediate hearing.  The  paper  is  served  by  the  court's  executive 
officer :  in  the  State  courts,  by  the  sheriff ;  in  the  United  States 
courts,  by  the  marshal.  The  person  to  whom  the  writ  is 
directed  must  without  delay  produce  the  body  of  the  prisoner 
before  the  court  and  shew  cause  why  the  prisoner  is  held  in 
restraint ;  or  if  unable  to  produce  the  body,  show  cause  for  that 
also.  It  is  a  sufficient  return  of  the  writ  to  show  that  the 
prisoner  is  detained  by  superior  authority.  In  order  that  the 
writ  may  be  always  efficacious,  no  judge  having  jurisdiction 
may  legally  refuse  to  listen  to  the  petition.  If  on  tbe  appear- 
ance of  the  body,  and  a  recital  of  the  evidence,  the  judge  finds 
that  the  person  is  held  without  sufficient  cause,  he  must  order 
immediate  release.  In  this  connection  it  is  well  to  bear  in 
mind  two  things:  first,  that  the  writ  of  habeas  corpus  is  a 
writ  of  right,  but  it  is  not  a  writ  of  course :  for,  although  any- 
one in  confinement  may  demand  it,  the  judge  is  not  bound  to 
grant  it  except  for  cause  shown;  second,  that  the  writ  does 
not  bring  about  a  final  determination  of  one's  guilt  or  inno- 
cence, but  merely  compels  an  immediate  hearing  on  the  ques- 
tion of  the  legality  of  one's  confinement.  Before  the  writ 
came  into  general  use  in  England  men  were  thrown  into  prison 
on  trumped  up  charges,  there  left  to  languish  for  months,  and 
even  years,  having  no  power  to  compel  an  immediate  hearing 
of  their  cases.    This  is  hardly  possible  now. 

The  word  confinement  herein  used  includes  not  only  cases 


143  Constitutional  Law 

of  actual  imprisonment,  but  the  exercise  of  any  illegal 
authority  by  one  person  over  another.  Thus  the  writ  may  be 
employed  by  a  parent  to  obtain  possession  of  a  child,  or  by  a 
guardian  for  the  possession  of  his  ward.  It  is  also  used  to 
secure  the  freedom  of  a  sane  person  unjustly  held  in  an  asylum 
under  color  of  insanity. 

This  great  bulwark  against  oppression  and  tyranny  is'  one  of 
the  oldest  writs  known.  Its  origin  is  lost  in  the  mists  of 
antiquity.  Its  beneficent  principles  are  to  be  found  in  the 
Pandects  of  Justinian,  and  traces  of  the  modern  writ  are  in 
the  Year  Book  of  Edward  III.  The  individual  right  to  sue  out 
the  writ  is  recognized  by  the  courts  of  every  State  in  the 
Union,  and  most,  if  not  all,  the  State  constitutions  secure  the 
right  by  provisions  similar  to  that  in  the  Federal  Constitu- 
tion. Exigencies  may  arise,  however,  when  the  suspension  of 
all  habeas  corpus  privilege  may  be  expedient;  but  such  action 
is  so  conducive  to  oppression  that  it  cannot  be  taken  except 
when  the  safety  of  the  general  public  demands  rigorous 
measures. 

The  Power  to  Suspend. — In  England,  Parliament  alone  may 
suspend  the  privilege  of  the  writ  of  habeas  corpus.  In  the 
United  States,  similarly,  the  power  to  suspend  rests  in  Con- 
gress'.' A  limited  power  to  suspend,  it  is  held,  may  be  exer- 
cised by  others  than  Congress :  first,  by  State  legislatures,  when 
the  power  is  not  wholly  forbidden  by  the  State  constitutions; 
second,  by  military  chiefs  in  declaring  martial  law,  for  that 
is  a  practical  bar  to  all  civil  process.  This  is  not  of  course  an 
actual  suspending  of  the  writ,  as  contemplated  by  the  Con- 
stitution, but  in  effect  it  amounts  to  the  same  thing.  A 
prisoner  of  war,  therefore,  or  a  person  held  under  the  law 
martial,  or  whose  offense  is  properly  cognizable  before  a  court- 
martial,  is  not  subject  to  the  writ  of  habeas  corpus^    No  State 

»Ex  parte  Merryman,  9  Am.  Law.  Register,  524. 
*  Johnson  v.  Sayre,  158  U.  S.,  109. 


Limitations  on  Congress  143 

legislature  has  as  yet  suspended  the  privilege  of  the  writ, 
except  that  of  Massachusetts,  which  at  the  time  of  Shays's 
Rebellion,  1786,  suspended  it  for  eight  months.  Congress,  by 
act  of  March  3,  1863  (13  Stat,  at  Large,  755),  authorized 
President  Lincoln  to  suspend  the  privilege  of  the  writ  in  any 
part  of  the  United  States,  whenever  in  his  judgment  it  was 
necessary.  The  previous  act  of  the  President,  April  27,  1861, 
in  suspending  the  writ  on  his  own  authority  was  probably 
unconstitutional." 

Federal  v.  State  Authority. — Practically  any  judge  of  any 
court  of  record,  whether  State  or  Federal,  may  issue  the  writ 
of  habeas  corpus.  As  a  general  principle,  each  of  these  powers. 
State  and  Federal,  is  supreme  within  its  respective  sphere  of 
action,  and  neither  may  interfere  with  the  enactments  of  the 
other,  or  intrude  within  its  jurisdiction;  but  where  there 
occurs  a  conflict  of  authority  the  national  government  is 
supreme,  until  the  matter  can  be  settled  by  the  Federal  courts.' 
It  follows  therefore  that  a  person  held  in  custody  by  the 
authority  of  the  United  States  cannot  be  released  by  habeas 
corpus  proceedings  on  the  part  of  any  State  court.  Neither 
may  a  United  States  judge  release  a  person  held  under  State 
authority — unless  perhaps  to  secure  his  presence  as  a  witness 
in  a  Federal  trial. 

Section  9.  Clanse  3. — No  bill   of  attainder  or  ex  post 
facto  law  shall  be  passed. 

Bills  of  Attainder. — A  bill  of  attainder  is  a  legislative  act 
imposing  punishment  without  judicial  trial.  When  the  pun- 
ishment imposed  is  less  than  death  the  act  is  called  a  bill  of 
pains  and  penalties.  Neither  has  any  place  in  modem  civili- 
zation.    The  English  constitution  does  not  prohibit  bills  of 

'  3  Pol.  Sc.  Quart.,  454;  5  Am.  Law.,  169. 

"  Ableman  v.  Booth,  21  How.,  506.    Tarble's  Case.  13  Wall.,  397. 


144  Constitutional  Law 

attainder,  and  Parliament  has  in  its  long  history  passed  many 
8uch  acts ;  but  it  is  doubtful  if  it  ever  passes  another.  In  the 
United  States,  immediately  after  the  Eevolution,  so  strong 
was  the  feeling  against  English  sympathizers,  that  many  State 
legislatures  passed  acts  in  the  nature  of  pains  and  penalties, 
depriving  certain  royalists  of  their  property  holdings,  and 
thereby  aroused  much  bitter  feeling.  The  Constitution  wisely 
prohibits  both  Congress  and  the  States  from  passing  bills  of 
attainder,  or  anything  in  the  likeness  of  them.  Accordingly, 
the  test  oath  law,  passed  by  Congress  at  the  close  of  the  Civil 
War,  which  required  all  attorneys  practicing  before  the  United 
States  courts  to  swear  that  they  had  never  taken  up  arms 
against  the  government  of  the  United  States,  was  declared 
unconstitutional,  for  it  was  in  effect  a  bill  that  imposed  pun- 
ishment on  certain  persons,  without  giving  them  opportunity 
for  defense.'  On  similar  grounds,  that  part  of  the  constitution 
of  Missouri,  which  required  an  expurgatory  oath  of  all  priests, 
teachers,  and  others,  was  held  to  be  void.*  These  decisions, 
it  is  fair  to  say,  were  given  by  the  Supreme  Court  at  a  time  of 
high  sectional  feeling,  and  the  minority  Judges  rendered  a 
strong  dissenting  opinion  in  each  case.  No  sane  person  doubts, 
however,  that  such  legislative  enactments,  although  not 
literally  bills  of  attainder,  are  so  much  like  them  in  general 
effect,  that  the  country  is  better  off  without  than  with  them. 

Ex  Post  Facto  Laws. — These,  like  bills  of  attainder,  are  a 
part  of  the  machinery  of  tyrants,  and  so  contrary  to  the  spirit 
of  American  institutions  that  they  could  not  be  tolerated  in 
the  United  States,  even  if  not  expressly  forbidden.  The  term 
ex  post  facto  means  literally  "  after  the  deed."  An  ex  post 
facto  law  therefore  is  a  law  which  makes  an  act  criminal  which 
was  not  so  when  committed;  or  which  increases  the  punish- 

'Ex  parte  Garland,  4  Wallace,  333. 
•  Cummings  v.  State,  4  Wallace,  277. 


Limitations  on  Congress  145 

ment  after  the  deed ;  or  which  so  modifies  the  rules  of  evidence 
after  the  deed  as  to  render  conviction  easier.'  The  term  is  of 
limited  application,  for  it  applies  only  to  criminal,  not  to  civil, 
proceedings.  Such  a  law  is  retroactive,  or  retrospective; 
but  all  retroactive  laws,  although  they  may  be  against  public 
policy  and  unjust,  are  not  ex  post  facto,  but  only  such  laws 
as  relate  to  crime.  Neither  Congress  nor  the  States  are  for- 
bidden to  enact  retroactive  legislation,  but  both  are  forbidden 
to  pass  laws  that  are  ex  post  facto. 

In  exception  to  the  foregoing  it  should  be  said  that  retro- 
active laws  that  impose  no  hardship  cannot  be  considered  ex 
post  facto.  Thus  legislation  that  mitigates  the  punishment 
after  the  deed  is  not  to  be  condemned  on  this  ground";  nor 
acts  that  effect  merely  technical  changes  in  the  procedure  in 
criminal  cases,  not  affecting  the  substantial  rights  of  the 
accused  " ;  or  that  allow  a  previous  conviction  to  work  a  greater 
punishment  of  the  crime  in  question  " ;  or  that  allow  accused 
persons  to  be  extradited  for  acts  done  before  a  certain  law  or 
treaty  is  established." 

Section  9,  Clause  4. — No  capitation  or  other  direct  tax 
shall  be  laid,  unless  in  proportion  to  the  census  or  enumer- 
ation hereinbefore  directed  to  be  taken. 

Capitation  Taxes. — A  capitation  tax  is  a  poll  tax :  that  is,  a 
tax  levied  on  the  person.  The  necessary  implication  of  this 
clause  is  tliat  there  are  otlier  direct  taxes  besides  poll  taxes, 
but  what  they  are  is  left  for  the  government  to  determine.  It 
is  interesting  to  note,  however,  that  the  only  direct  tax  men- 
tioned in  the  Constitution,  the  capitation  tax.  Congress  has 

•  Thompson  v.  Utah,  170  U.  S.,  343. 
>"  Ratzky  v.  People,  29  N.  Y.,  124. 

"  Duncan  v.  Mo.,  152  U.  S.,  377;  Gibson  v.  Miss.,  162  U.  S.,  565. 
"Rand  v.  Commonwealth,  9  Gratt^n  (Va.),  738. 
«  In  re  Giacomo,  12  Blatch.,  391. 
10 


146  Constitutional  Law 

never  yet  levied,  although  certain  States  have  at  various  times 
done  so. 

The  reason  for  thus  restricting  the  levy  of  direct  taxes  is 
largely  historical.  It  was  not  to  render  taxation  of  this  kind 
impossible,  or  even  more  than  ordinarily  difficult,  but  to  main- 
tain some  sort  of  equilibrium  between  representation  in  Con- 
gress and  direct  taxation — a  matter  already  discussed  in  con- 
nection with  Clause  3,  Section  2,  Article  1,  of  the  Constitution. 
But  slavery  has  long  since  disappeared  from  the  United  States, 
and  there  now  seems  to  be  no  sufficient  reason  for  perpetuating 
this  requirement  in  the  levy  of  direct  taxes.  To  levy  taxes  ac- 
cording to  the  census  in  the  several  States  has  been  found  to 
be  both  inconvenient  and  difficult,  but  as  a  change  in  this 
respect  would  require  a  constitutional  amendment,  it  is  not 
likely  to  be  soon  brought  about.  It  may  be  said,  however,  that 
of  all  taxes,  direct  taxes  are  the  least  popular.  Hence,  the 
difficulties  attending  the  levy  are  not  without  a  beneficent 
aspect :  in  a  measure  they  are  a  guaranty  that  direct  taxes  will 
be  levied  only  in  times  of  great  necessity. 

Section  9,  Clause  5. — No  tax  or  duty  shall  be  laid  on 
articles  exported  from  any  State. 

Export  Taxes. — This  clause  has  immediate  reference  to  Con- 
gress; a  later  clause  imposes  a  like  restriction  on  the  States 
(Article  1,  Section  10,  Clause  2).  To  exempt  articles  of  ex- 
port from  taxation  does  in  a  measure  foster  home  production 
and  the  export  trade,  but  whether  it  was  wise  to  incorporate 
such  exemption  in  the  Constitution  and  make  it  eternal  and 
absolute  is  certainly  open  to  question.  It  is  worthy  of  note 
that  in  the  Constitutional  Convention  such  influential  men  as 
Washington  and  Madison  strongly  advocated  the  power  to  tax 
exports  as  well  as  imports'. 

In  connection  with  this  clause  one  must  distinguish  between 
an  export  tax  levied  as  such,  and  from  which  revenue  is  de- 


Limitations  on  Congress  147 

rived,  and  a  tax  in  tlie  form  of  an  excise  on  articles  of  domestic 
growth  or  manufacture,  which  may  be  designed  for  the  export 
trade.  Where  articles  intended  for  export  are  required  to 
bear  a  stamp,  for  which  a  nominal  fee  is  paid,  to  show  their 
purity  or  genuineness,  such  requirement  is  not  an  export  tax." 
But  such  a  stamp  required  for  purposes  of  revenue  comes 
within  the  prohibition  as  a  tax  on  exports." 

Section  9,  Clause  6. — No  preference  shall  be  given  by  any 
regulation  of  commerce  or  revenue  to  the  ports  of  one 
State  over  those  of  another;  nor  shall  vessels  bound  to  or 
from  one  State  be  obliged  to  enter,  clear,  or  pay  duties  in 
another. 

Commercial  Preferences. — It  will  be  remembered  that  com- 
mercial irregularities  led  to  the  Annapolis  Convention,  which 
in  turn  led  to  the  Convention  that  framed  the  Constitution. 
It  was  the  aim  of  this  Convention  to  correct  these  troubles,  and 
to  make  sure  that  in  commercial  matters,  at  least,  the  govern- 
ment should  treat  the  States  with  absolute  equality.  In  their 
zeal  the  members  were  led  into  repetition,  for  the  present 
clause  but  reiterates  what  is  already  expressed  in  Section  8, 
Clause  1,  that  all  duties  shall  be  equal.  But  it  further  in- 
sures the  equality  of  the  States  by  saying  that  in  no  possible 
manner  shall  matters  of  commerce  and  revenue  ever  be  so 
regulated  by  Congress  as  to  result  in  the  exaltation  of  the 
ports  of  one  State  over  those  of  another. 

Entering  and  Clearing. — ^The  prohibition  expressed  in  the 
last  part  of  Clause  6  seems  to  repeat  in  a  measure  the  thought 
given  in  the  first  part :  for  to  compel  vessels  bound  to  or  from 
one  State  to  enter  and  clear  from  another  is  plainly  preferring 
the  ports  of  one  over  the  ports  of  another.  The  restriction  was 
doubtless  inspired  by  the  harassing  conditions  of  prc-revo- 

"  Pace  V.  Burgess,  92  U.  S..  .372. 
"Almey  v.  California,  24  How.,  169. 


148  Constitutional  Law 

lutionary  days,  when  American  vessels  bound  to  any  European 
port  were  obliged  to  enter  and  clear  first  from  a  British  port. 
To-day  it  has  lost  much  of  its  significance. 

To  enter  a  port  is  to  report  the  ship  to  the  proper  official 
and  obtain  permission  to  land  or  to  obtain  cargo.  To  clear  is 
to  obtain  from  the  proper  officials  the  necessary  papers  for 
sailing  from  the  port.  Both  of  these  requirements  are  for  the 
good  of  the  vessel  and  the  country  to  which  it  comes,  and  often 
to  the  country  to  which  it  goes.  The  papers  that  a  ship  is 
generally  required  to  carry  as  evidence  of  her  character,  quality 
and  good  intentions  are :  certificate  of  registry,  sea  letter  or 
passport,  crew  list,  log  book,  charter  party — if  under  affreight- 
ment— invoice,  and  bill  of  lading.  The  list  varies  somewhat 
Avith  different  nations,  but  the  want  of  the  requisite  papers, 
or  any  of  them,  gives  a  vessel  a  suspicious  character.  A  vessel, 
however,  that  has  gone  through  the  necessary  formality  of 
clearing  from  any  port  in  the  United  States  cannot,  by  any 
act  of  Congress,  or  by  any  usurpation  of  sovereignty  on  the 
port  of  any  State,  be  compelled  to  clear  from  another  before 
reaching  its  destination  ;  nor  can  a  vessel  bound  to  a  port  of  the 
United  States  be  compelled  to  enter  first  any  special  port  at 
the  designation  of  Congress,  or  of  any  State. 

Although  a  State  may  not  lay  imposts,  or  substantially 
regulate  commerce,  it  may  make  minor  needful  rules  govern- 
ing the  shipping  about  its  ports,  even  though  in  so  doing  it 
makes  restrictions  not  demanded  at  other  ports.  Thus  a  State 
may  make  rules  for  pilotage,  provided  they  are  reasonable, 
and  require  ship  owners  to  pay  small  pilotage  fees."  But  a 
State  statute  requiring  every  shipmaster  to  pay  a  fee  for  every 
steerage  passenger  brought  by  his  vessel  to  the  ports  of  the 
State  is  void  as  an  attempt  to  lay  duties  and  to  regulate  com- 
merce unduly." 

"Cooley  V.  Port  Wardens,  12  How.,  299. 
"  The  Passenger  Cases,  7  How.,  283. 


LiiriTATioxs  ox  Congress  110 

Section  9,  Clause  7. — No  money  shall  be  drawn  from  the 
treasury  but  in  consequence  of  appropriations  made  by 
law;  and  a  regular  statement  and  account  of  the  receipts 
and  expenditures  of  all  public  money  shall  be  published 
from  time  to  time. 

Appropriations. — This  clause  is  a  check  on  the  Executive. 
Congress  holds  the  purse  strings  of  the  nation,  and  not  a 
penny  of  national  funds  can  be  paid  out  except  in  consequence 
of  Congressional  appropriations.  Were  it  otherwise,  and  had 
the  Chief  Executive  unlimited  power  to  draw  on  the  treasury, 
there  is  no  telling  to  what  heights  of  despotism  an  ambitious 
President  might  lift  himself  by  the  lavish  use  of  money.  Not 
even  a  lawful  debt  against  the  government  can  be  paid  by  any 
official  until  Congress  has  acted  in  the  matter.  In  1855  a 
Court  of  Claims  was  established  to  determine  the  legality  of 
claims  against  the  United  States.  But  even  the  favorable 
decision  of  that  court  does  not  constitute  a  lien  on  Federal 
property,"  or  authorize  a  lien  on  the  public  funds.  The  func- 
tion of  that  tribunal  is  merely  to  determine  what  claims 
against  the  government  are  legally  valid,  and  what  are  not.  A 
creditor  of  the  national  government  has  no  means  of  com- 
pelling immediate  payment;  he  must  await  the  action  of 
Congress. 

It  is  the  duty  of  the  Treasurer  of  the  United  States  to  keep 
strict  account  of  all  government  expenditures  and  receipts, 
and  it  is  the  duty  of  the  Secretary  of  the  Treasury  to  report 
the  same  annually  to  Congress.  These  financial  reports  are 
usually  voluminous,  and  form  a  large  part  of  the  executive 
documents  of  the  nation.  Thus  the  financial  operations  of  the 
country  are  kept  open  and  above  board.  The  meetings  and 
discussions  of  Congress  are  for  the  most  part  public,  and  the 
published  reports  of  the  Secretary  of  the  Treasury  keep  the 
people  informed  as  to  how  their  money  is  spent. 

"United  States  v.  Barney.  ?,  Hall's  L.  J.,  130. 


150  Constitutional  Law 

Section  9,  Clause  8. — No  title  of  nobility  shall  be  granted 
by  the  United  States;  and  no  person  holding  any  office  of 
profit  or  trust  under  them,  shall,  without  the  consent  of 
the  Congress,  accept  of  any  present,  emolument,  office,  or 
title,  of  any  kind  whatever,  from  any  king,  prince,  or 
foreign  State. 

Titles  of  Nobility. — Equality  is  the  foundation  of  American 
institutions ;  to  create  a  privileged  order  would  enter  a  wedge 
against  democratic  government.  In  Section  10  of  this  Article 
of  the  Constitution  the  States  likewise  are  forbidden  to  grant 
titles  of  nobility.  These  two  provisions  are  perhaps  unneces- 
sary, but  they  were  deemed  reasonable  precautions  to  insure 
democratic  equality  in  the  United  States. 

Presents  to  Officers. — In  forbidding  public  officials  to  accept 
presents  from  any  king,  prince,  or  foreign  State,  the  framers 
of  the  Constitution  placed  a  check  on  the  possibly  corrupting 
influence  of  European  and  other  governments.  That  it  is 
possible  for  one  government  to  corrupt  the  officials  of  another 
has  been  evidenced  too  often  in  history  to  be  scouted  to-day. 
Hence,  the  prohibition  herein  expressed  is  wise.  It  applies 
to  both  military  and  civil  officers.  As  early  as  1803  an  amend- 
ment was  offered  in  Congress  to  extend  the  restriction  to 
private  citizens;  but  the  proposed  amendment  was  never 
ratified.  It  is,  however,  within  the  power  of  Congress  to 
remove  the  prohibition,  and  in  some  instances  this  has  been 
done. 

Section  10,  Clause  1. — No  State  shall  enter  into  any 
treaty,  alliance,  or  confederation;  grant  letters  of  marque 
and  reprisal;  coin  money;  emit  bills  of  credit;  make 
anything  but  gold  and  silver  coin  a  tender  in  payment  of 
debts;  pass  any  bill  of  attainder,  ex  post  facto  law,  or  law 
impairing  the  obligation  of  contracts,  or  grant  any  title  of 
nobility. 

Treaties,  Alliances,  or  Confederations. — Treaty  making  is 
exercising  sovereign  power.    When  one  nation  forms  a  treaty 


LIMITATION'S    OX    THE   STATES  151 

with  another  the  act  is  a  formal  recognition  on  the  part  of 
each  that  tlic  other  is  an  independent  State.  It  is  with  reason 
therefore  that  the  Constitution  forbids  to  the  States  all  acts 
suggestive  of  a  separate  national  existence. 

It  is  not  unconstitutional,  however,  for  States  to  have  com- 
munication with  each  other  as  States,  and  to  enter  into  agree- 
ments, so  long  as  such  acts  in  no  way  prejudice  the  supremacy 
of  the  United  States."  A  phrase  in  Clause  3  of  this  Section 
expressly  allows  such  compacts  with  the  consent  of  Congress, 
for  it  is  plain  that  there  are  many  matters  on  which  States  may 
agree,  matters  that  promote  more  harmonious  relations,  etc., 
that  do  not  work  any  serious  political  changes  or  affect  the 
nation  at  large  in  any  way.  The  consent  of  Congress  herein 
required  may  be  expressly  given,  or  it  may  be  implied  by  the 
subsequent  action  of  Congress — as  where  two  States  agree  to 
a  change  in  their  boundary  lines,  and  Congress  afterwards 
districts  the  two  in  accordance  with  this  change."  An  attempt, 
however,  on  the  part  of  a  State  to  deliver  up  a  fugitive  from 
justice  to  a  foreign  State  has  been  construed  as  an  attempt  to 
enter  into  an  unauthorized  agreement,  as  a  usurpation  of 
power  belonging  to  independent  sovereignty."*  So  any  com- 
pact between  two  States,  or  among  several,  tending  to  enlarge 
the  political  powers  of  any  one  of  them  would  certainly  come 
within  this  constitutional  limitation.     (See  also  p.  182.) 

Letters  of  Marque  and  Reprisal. — To  issue  letters  of  marque 
and  reprisal  is,  like  treaty  making,  the  exercise  of  sovereign 
power.  Had  the  individual  States  the  authority  to  grant  such 
letters,  it  would  be  within  their  power  to  embroil  the  entire 
country  in  war  with  its  certain  costliness  and  possible  disaster. 
All  war  powers,  great  and  small,  are  more  safely  vested  in  the 
national  legislature.     Congress  may,  however,  even  delegate 

"Virginia  v.  Tenn.,  148  U.  S..  503.  Wharton  v.  Wise,  153  U.  S., 
155. 

""Holmes  v.  Jennison,  14  Peters,  540. 


152  Constitutional  Ijaw 

this  great  power  to  the  States;  and  in  certain  extreme  cases 
the  latter  may  engage  in  defensive  war  without  the  permission 
of  Congress.     (See  Clause  3  of  this  Section.) 

Coining  Money. — As  to  the  wisdom  of  forbidding  to  the 
States  the  coinage  of  money,  one  has  but  to  review  the  mone- 
tary history  of  the  States  just  previous  to  the  adoption  of  the 
Constitution.  Then  each  State  coined  money  and  adopted  its 
own  monetary  standards.  There  was  uniformity  nowhere.  It 
is  utterly  impossible  to  have  a  stable  system  of  finance  in  the 
United  States,  unless  all  power  over  the  common  medium  of 
exchange  is  vested  in  one  authority. 

Bills  of  Credit. — What  constitutes  a  State  bill  of  credit  has 
been  the  subject  of  many  legal  battles.  It  has  long  been 
settled,  however,  that  any  written  or  printed  certificate,  issued 
by  a  State,  involving  the  credit  of  the  State,  and  appropriate 
for  circulation  as  money,  is  a  bill  of  credit.  Certain  loan 
certificates,  issued  by  the  State  of  Missouri  in  1821,  although 
not  made  legal  tender  nor  designed  to  circulate  as  money,  did 
in  fact  so  circulate,  and  were  therefore  classed  as  bills  of  credit, 
and  the  statute  authorizing  them  was  declared  void.^*  Al- 
though the  Constitution  is  silent  as  to  the  power  of  Congress 
to  issue  bills  of  credit,  it  expressly  forbids  the  power  to  the 
States.  But  what  a  State  may  not  do  in  this  respect,  it  seems 
that  its  fiscal  agents  may  do.  Thus  notes  issued  by  a  bank, 
chartered  by  a  State,  have  been  declared  good,  and  not  in  con- 
flict with  this  prohibition.'^  But  since  the  imposition  of  the 
Federal  tax  of  10  per  cent  on  the  notes  of  State  banks,  these 
institutions  have  no  longer  found  it  profitable  to  issue  such 
paper.  On  the  other  hand,  State  certificates  of  stock  and  State 
bonds  are  not  bills  of  credit,  for  they  do  not  circulate  as  money. 
To  prohibit  their  issuance  on  such  grounds  would  be  to  deprive 
the  States  of  power  to  borrow  money. 

''Craig  V.  State  of  Mc,  4  Peters,  410. 

==■  Briscoe  v.  Bank  of  Ky.,  11  Peters,  257.  Darrington  v.  Bank  of 
Ala.,  13  How..  12. 


Limitations  on  the  States  153 

Legal  Tender. — The  restriction  in  respect  to  legal  tender,  as 
well  as  the  two  limitations  preceding,  was  the  result  of  an 
effort  on  the  part  of  the  f  ramers  of  the  Constitution  to  secure 
a  uniform  standard  for  nil  rommereial  transactions.  Without 
this  restriction  a  State  might  declare  any  convenient  medium 
of  exchange  legal  tender,  with  the  result  that  there  might  be 
as  many  different  ways  of  satisfying  a  debt  as  the  minds  of 
different  legislators  could  conceive.  But  this  is  not  the  worst. 
It  is  not  to  be  supposed  that  all  State  legislatures  would  agree 
upon  the  same  legal  tender,  and  if  they  did  not,  the  result 
would  be  financial  chaos.  Coining  money,  emitting  bills  of 
credit,  and  creating  legal  tender — these  are  serious  acts,  and 
the  power  to  perform  them  can  better  be  lodged  in  one 
authority  than  in  many. 

Bills  of  Attainder,  etc. — This  restriction  requires  little 
comment.  It  would  be  obviously  absurd  to  allow  States,  even 
by  implication,  to  exercise  powers  that  are  forbidden  to  the 
general  government. 

Contracts. — A  contract  is  an  agreement  between  two  or 
more  parties.  It  may  be  express,  as  where  the  terms  are 
openly  avowed ;  or  implied,  as  where  common  reason,  or  justice, 
supplies  the  terms  from  the  nature  of  the  transaction,  or  from 
the  acts  of  the  parties — for  it  is  an  axiom  of  the  law  that  every 
man  intends  the  natural  consequences  of  his  acts.  A  contract 
may  also  be  execuiory.  as  where  one  binds  himself  to  do,  or 
not  to  do,  something  in  the  future;  or  executed,  as  where  the 
terms  of  the  agreement  have  been  performed.  A  mutual  con- 
tract may  thus  be  executed  by  one  party,  and  remain  executory 
as  to  the  other.  The  word  contract,  as  used  in  this  clause  of 
the  Constitution,  includes  all  four  kinds." 

The  Obligation  of  Contracts. — The  obligation  of  contracts 
is  their  enforcibility.  or  that  power  of  the  law,  read  into 
every  yalid  contract,  which  may  be  called  into  action  to  compel 

^  Holmes  v.  Holmes,  4  Barber,  295. 


154  Constitutional  Law 

the  keeping  of  the  terms  of  the  agreement.  To  illustrate :  If 
A  promises  to  pay  B  one  hundred  dollars  in  return  for  work 
performed,  this  mutual  agreement  is  an  express,  executory 
contract.  If  after  the  work  is  performed  A  refuses  to  pay  B, 
the  latter  can  enforce  his  legal  right  against  A.  If  B  per- 
forms' work  for  A  at  the  instance  of  the  latter,  and  nothing  is 
said  about  the  price,  A  is  under  an  implied  contract  to  pay  B 
a  reasonable  sum;  and  the  obligation  of  that  contract  is  as 
good  as  the  other.  But  if,  meanwhile,  by  a  change  in  the 
municipal  law,  A  is  somehow  released  from  his  contract  to 
pay  B,  or  the  latter  is  deprived  of  his  right  of  action  against  A, 
the  obligation  of  the  contract  is  said  to  be  impaired.  It  was  to 
prevent  State  legislatures  from  thus'  interfering  with  the 
vested  contract  rights  of  its  citizens,  either  wilfully  or  other- 
wise, that  the  present  clause  was  inserted  in  the  Constitution. 
To  impair  the  obligation  of  contracts,  however,  a  law  must, 
like  an  ex  post  facto  law,  be  passed  subsequent  to  the  contract, 
States  have  full  power  to  enact  laws  regulating  future  con- 
tracts among  their  citizens. 

What  Impairs  a  Contract. — Any  law  that  enlarges,  abridges, 
or  changes  the  intentions  of  the  contracting  parties  impairs 
the  obligation  of  the  contract;  and  the  degree  of  such  change 
is  not  important.  Any  law  which  imposes  conditions  not  be- 
fore expressed  or  understood,  or  which  does  away  with  those 
that  are  expressed,  impairs  the  obligation.  Likewise,  a  law 
which  makes  a  contract  invalid,  which  was  valid  when  made,  or 
which  releases  either  party,  impairs  the  obligations.**  On  the 
other  hand,  a  law  that  reasonably  limits  the  rights  of  either 
party  to  enforce  the  contract,  or  that  extinguishes  some  remedy, 
does  not  impair  the  obligation,  provided  some  substantial 
remedy  is  still  left.  Thus  statutes  of  limitation  and  laws  that 
discharge  debtors  from  prison,  or  that  forbid  their  incarcera- 
tion, are  valid.  They  are  sensible  limitations,  and  do  not 
deprive  the  creditor  of  his  substantial  remedies. 

\/         »*  Sturgis  V.  Crowningshield,  4  Wheat.,  197. 


Limitations  ox  tiie  States  155 

Charters. — A  charter,  as  understood  in  municipal  law,  is  a 
legislative  document  creating  a  corporation.  Charters  may  be 
either  public  or  private.  They  are  public  if  granted  to  public 
corporations,  such  as  a  city  or  township;  they  are  private  if 
granted  to  private  corporations,  such  as  a  private  bank  or  a 
bridge  company.  A  private  charter  is  a  contract  in  the  mean- 
ing of  the  Constitution  " ;  a  public  charter  is  not.  The  reason 
for  this  distinction  is  not  hard  to  understand.  A  private 
charter  is  a  grant  of  privileges,  under  which  multifarious 
private  rights  become  vested ;  a  public  charter  is  practically  a 
statute  enacted  for  the  public  good.  Municipal  corporations 
are  created  as  necessary  conveniencies  in  government.  They 
are  parts  of  the  governing  power  of  the  State,  and  hence  their 
powers  and  privileges  are  subject  to  legislative  modification 
and  recall. 

Exceptions. — There  are  some  exceptions  to  the  general 
principles  stated  above.  If  a  charter  contains  a  clause  reserv- 
ing to  the  State  legislature  the  right  of  repeal,  or  modification, 
that  right  remains.  To  repeal  or  to  modify  is  then  in  accord- 
ance with  the  charter  itself.  The  same  is  true  if  the  State 
constitution  provides  that  all  charters  shall  be  subject  to  legis- 
lative control."  Furthermore,  all  ehartersi  are  subject  to  the 
superior  right  of  the  State  to  exercise  the  power  of  eminent 
domain,*'  and  to  the  restraints  of  the  State's  police  power," 
and  all  other  reasonable  regulations  imposed  by  State 
authority.  There  is  no  reason  why  contract  rights  should  be 
any  better  off  in  these  respects  than  any  other  property  within 
the  State.    It  should  ever  be  borne  in  mind  that  the  welfare  of 

*  Dartmouth  College  v.  Woodward,  4  Wheat.,  518. 

"  Murray  v.  Charleston,  96  U.  S.,  432.  Railroad  Co.  v.  Georgia, 
98  U.  S.,  359. 

="  Const.  Limitations,  Cooley,  6  Ed.  339.  West  River  Bridge  Co., 
V.  Dix,  6  How.,  507. 

=*U.  S.  V.  Dewitt,  9  Wall.,  41. 


156  COXSTITUTIOXAL    LaW 

the  people  is  of  supreme  importance,  and  that  while  a  State 
may  irrevocably  bind  itself  by  contracts  with  persons,  or  cor- 
porations, or  with  other  States,  it  cannot  do  so  to  the  serious 
detriment  of  its  people,  or  at  a  loss  of  any  of  the  essential 
powers  of  sovereignty.  In  the  exercise  of  its  police  power,  a 
State  may  lawfully  modify  or  annul  many  of  its  agreements 
having  contractural  elements  in  them,  when  such  action  re- 
sults in  moral  or  physical  good  to  the  people.  Thus  no  license 
laws  are  valid,  even  though  they  deprive  some  individuals  of 
the  right  to  manufacture  and  sell  liquor;  and  railroad  com- 
panies may  be  compelled  to  fence  in  their  tracks,  or  to  slow 
down  their  trains  at  exposed  places.  Such  regulations  are 
reasonable  precautions  for  the  public  safety. 

Grants. — There  is  no  discrimination  between  public  and 
private  grants,  as  with  charters;  each  is  irrevocable  when  com- 
pleted. A  grant  extinguishes  the  right  of  the  grantor,  and  im- 
plies a  promise  on  his  part  not  to  reassert  it.  In  this  respect 
a  State  has  no  greater  power  than  its  humblest  citizens.  A 
grant  is  an  executed  contract,  and  as  such  is  not  to  be  impaired 
by  future  legislation.  Thus  when  a  State  makes  a  grant  of 
land  to  an  individual,  or  to  a  corporation,  the  grant  cannot  be 
repealed  or  modified  by  any  succeeding  legislature.  In  1758 
the  Colonial  legislature  of  New  Jersey  authorized  the  purchase 
of  a  tract  of  land  within  the  State  for  the  use  of  the  Delaware 
Indians,  and  exempted  the  land  from  taxation.  In  1803,  the 
Indians  having  all  died,  the  land  was  sold  by  legislative 
authority  to  private  persons,  and  in  1804  the  legislature  re- 
pealed the  law  of  1758  exempting  the  land  from  taxation.  It 
was  decided,  however,  that  the  act  of  1758  was  in  the  nature 
of  a  contract  and  irrepealable,  and  the  act  of  1804  was  there- 
fore unconstitutional.''*  This  case  established  the  constitu- 
tional principles  that  a  State  cannot  annul  a  conveyance, 
when  once  made,  or  repudiate  an  exemption  when  once  created. 

*  N.  J.  V.  Wilson,  7  Cranch.,  164. 


Limitations  ox  the  States  157 

A  State  may  therefore  exempt  parties  or  lands  from  taxation, 
and  if  the  terms  of  the  exemption  are  clear,  and  the  exemption 
is  not  made  as  a  mere  favor,  it  becomes  irrevocable.'" 

Public  Offices. — An  office  holder  gets  his  position  either  by 
election  or  by  appointment.  While  a  State  or  municipality 
is;  always  under  an  implied  contract  to  pay  for  services 
rendered  in  office,  the  office  itself  is  not  such  a  contract  as  may 
not  be  impaired  by  subsequent  legislation.  A  public  office  may 
be  modified  or  abolished  at  any  time,  unless  some  constitu- 
tional provision  expressly  prohibits  such  change. 

Special  Privileges. — Generally  speaking,  all  special  privi- 
leges obtained  under  the  general  law  of  the  State,  such  as 
licenses  to  carry  on  a  business  not  open  to  the  general  public, 
or  exemptions  from  military  or  jury  duty,  or  exemptions  of 
property  from  taxation,  may  be  taken  away  by  subsequent 
legislation.  These  are  looked  upon  as  special  favors,  and  are 
not  contracts  within  the  prohibition  of  the  Constitution  for- 
bidding the  impairment  of  contracts."  The  case  of  Stone  v. 
Miss.,  which  is  in  point,  was  as  follows : 

"In  1867  the  legislature  of  Mississippi  granted  permission 
to  a  certain  lottery  company  to  carry  on  its  business  for  twenty- 
five  years.  In  1867,  however,  the  State  amended  its  Constitu- 
tion by  a  clause  forbidding  lottery  companies  to  do  business 
within  the  State.  Stone,  for  conducting  the  lottery  organized 
under  the  Act  of  1867,  was  sued  by  the  attorney-general  of 
Mississippi.  He  maintained  in  defense  that  the  amendment 
under  which  he  was  sued  was  unconstitutional  in  so  far  as  it 
applied  to  liim.  The  court,  distinguishing  between  a  charter 
and  a  mere  licen.'ie  to  enjoy  privileges  for  a  time,  held  that — 

"  1.  While  a  private  charter  is  irrevocable,  a  license  may  be 
revoked  at  any  time. 

"  2.  Lotteries  are  public  evils,  and  no  legislature  can  for- 

»«New  Orleans  v.  Houston,  119  U.  S.,  265. 

"  Stone  V.  Miss.,  101  U.  S.,  814.    Fell  v.  State,  42  Md.,  71. 


158  Constitutional  Law 

ever  defeat  the  will  of  the  people  in  respect  to  such  business  by 
granting  an  irrevocable  charter. 

"  3.  Under  the  so-called  police  power  a  State  may  depart 
from  the  strict  letter  of  the  constitution  where  such  departure 
is  reasonable  and  for  the  general  good  of  the  people." 

Titles  of  Nobility.— The  Federalist,  No.  84,  has  the  follow- 
ing to  say  regarding  this  restriction :  "  Nothing  need  be  said 
to  illustrate  the  importance  of  the  prohibition  of  titles  of 
nobility.  This  may  truly  be  denominated  the  corner-stone 
of  republican  government;  for  so  long  as  they  are  excluded, 
there  can  never  be  serious  danger  that  the  government  will 
be  any  other  than  that  of  the  people." 

Section  10,  Clause  2. — No  State  shall,  without  the  consent 
of  the  Congress,  lay  any  imposts  or  duties  on  imports 
or  exports  except  what  may  be  absolutely  necessary  for 
executing  its  inspection  laws:  and  the  net  produce  of  all 
duties  and  imposts,  laid  by  any  State  on  imports  or 
exports,  shall  be  for  the  use  of  the  treasury  of  the  United 
States;  and  all  such  laws  shall  be  subject  to  the  revision 
and  control  of  the  Congress. 

"States  May  Not  Lay  Duties. — This  clause,  in  a  general  way, 
reiterates  the  fact  that  all  interstate  and  foreign  commerce  is 
under  the  exclusive  control  of  Congress :  for  to  tax  imports  or 
exports  is  to  control  commerce  in  a  greater  or  less  degree.  The 
framers  of  the  Constitution  determined  that  the  commercial 
interests  of  the  nation  would  prosper  better  under  the  control 
of  one  central  authority  than  under  many  scattered  ones.  At 
the  same  time  they  recognized  the  fact  that  the  individual 
States  were  entitled  to  some  discrimination  in  the  matter  of 
imports  and  exports;  and,  furthermore,  that  the  restriction 
of  their  right  to  tax  articles  of  commerce  should  not  interfere 
with  their  inherent  right  to  tax  the  property  of  their  own 
citizens  for  municipal  purposes.  In  other  words,  they  realized 
the  necessity  of  State  inspection  laws,  and  of  ordinary  State 


Limitations  ox  the  States  159 

taxation;  and  the  courts  have  many  times  distinguished  be- 
tween export  or  import  duties,  levied  as  such,  and  reasonable 
restrictions  on  exports  and  imports  imposed  in  the  interests 
of  public  health,  and  internal  revenue  taxes  on  goods  that 
might  or  might  not  become  subjects  of  interstate  or  foreign 
commerce. 

Taxes  on  Exports. — Although  the  States  are  forbidden  to 
levy  export  taxes,  they  may  pass  various  laws,  in  the  interests 
of  public  health,  even  if  the  result  of  such  laws  is  to  limit 
the  export  trade.  For  example,  a  State  may  entirely  prohibit 
the  exportation  of  game  shot  within  its  borders";  and  it  may 
prohibit  the  manufacture  of  liquor,  including  liquor  intended 
wholly  for  the  export  trade.**  Furthermore,  since  States'  may 
undoubtedly  tax  the  property  of  their  citizens  for  domestic 
purposes,  the  fact  that  certain  goods  produced  or  manu- 
factured within  the  State  are  designed  for  shipment  beyond 
the  State  does  not  exempt  them  from  such  taxation."  The 
solution  in  these  cases,  as  in  so  many  others,  depends  on  the 
question  of  reasonableness  and  intent.  If  the  tax,  or  the 
restriction,  is  reasonable,  and  the  purpose  of  it  is  not  to  limit 
trade  beyond  the  State,  it  is  not  likely  to  be  pronounced  invalid 
by  the  courts. 

Inspection  Laws. — These  are  undoubtedly  restrictions  on 
commerce,  but  they  are  expressly  allowed  by  the  Constitution. 
They  provide  for  the  examination  and  approval  of  goods  in- 
tended for  export  or  for  domestic  use ;  their  object  is  to  pre- 
serve the  character  of  the  goods  and  to  protect  the  community 
against  fraud.  The  tax,  or  duty,  necessary  for  the  execution 
of  such  laws  is  in  the  nature  of  a  fixed  fee  paid  for  the  labor  of 
the  inspection.  The  net  proceeds  of  these  fees,  however,  are 
for  the  use  of  the  treasury  of  the  United  States.    Thus  States 

"Geer  v.  Conn.,  161  U.  S..  519. 

"Kidd  V.  Pearson,  128  U.  S.,  1. 

^  Coe  V.  Errol,  116  U.  S.,  517.    Pace  v.  Burgess,  92  U.  S.,  372. 


160  Constitutional  Law 

are  effectually  prevented  from  gaining  a  revenue  from  imports 
or  exports  under  the  cover  of  inspection  fees. 

Character  of  Imported  Goods. — The  general  rule  is  that 
imported  goods  do  not  lose  their  character  as  imports  until  the 
original  package  has  been  broken  up  for  use  or  for  retail  by 
the  importer,  or  until  the  package  has  passed  from  his  hands 
to  the  hands  of  the  purchaser.  Goods  in  the  original  package, 
or  bale,  while  in  the  hands  of  the  importer,  are  not  subject  to 
State  taxation,  but  become  so  when  the  package,  or  bale,  is 
broken  up  by  the  importer,  or  when  the  goods  pass  to  the  hands 
of  a  purchaser.  Goods  in  transit  are  articles  of  interstate 
commerce  until  received  at  their  destination.  If  received  at 
the  ports  of  one  State,  but  destined  for  the  ports  of  another, 
they  are  not  taxable  until  they  have  arrived  at  their  destina- 
tion.'* It  has  been  held  in  a  numl)er  of  cases  that  the  words 
imports  and  exports,  as  used  in  this  connection,  refer  to 
foreign  commerce  only,  not  to  commerce  between  the  States. 
Thus,  although  States  may  not  levy  an  import  tax  on  goods 
brought  in  from  other  States,  they  may  tax  such  goods  as 
property  of  their  citizens,  even  in  the  original  package.*' 

Indirect  Taxation. — For  a  State  to  tax  imports  or  exports 
indirectly  is  quite  as  unlawful  as  to  tax  them  directly.  The 
State  of  Maryland  once  enacted  a  law  requiring  all  importers 
of  foreign  goods  to  take  out  a  license  costing  fifty  dollars.  The 
State  of  California  enacted  a  law  requiring  a  stamp  on  all  })ill3 
of  lading  for  gold  exported  from  the  State.  Both  laws  were 
declared  unconstitutional  by  the  Supreme  Court :  the  first  as 
an  indirect  tax  on  imports";  the  second  as  an  indirect  tax  on 
exports.'*    Ncitlier  could  be  justified  as  an  inspection  law. 

""  Brown  v.  Maryland,  12  Wheat.,  419. 

"Brown  v.  Houston,  114  U.  S.,  622.  Woodruff  v.  Parham,  8 
Wall.,  123. 

"Brown  v.  Maryland,  12  Wheat.,  419. 
''  Almey  v.  Cal.,  24  How.,  1G9. 


Limitations  ox  the  States  161 

Section  10,  Clause  3. — No  State  shall,  without  the  consent 
of  Congress,  lay  any  duty  of  tonnage,  keep  troops  or 
ships  of  war  in  time  of  peace,  enter  into  any  agreement 
or  compact  with  another  State  or  with  a  foreign  power, 
or  engage  in  war,  unless  actually  invaded,  or  in  such  im- 
minent danger  as  will  not  admit  of  delay. 

Tonnage  Dues. — Tonnage  is  the  carrying  capacity  of  a 
vessel  reckoned  in  tons.  In  England  tonnage  is  tlie  number 
of  tons  burden  a  ship  can  carry ;  in  the  United  States  it  is  the 
vessel's  internal  cubic  capacity,  reckoned  in  tons  of  100  cubic 
feet  each."  Since  this  is  estimated  rather  generally,  however, 
the  official  tonnage  of  a  vessel  in  the  United  States  is'  below  its 
actual  capacity  to  carry  freight."  The  duty  of  tonnage,  pro- 
hibited by  tliis  clause  in  the  Constitution,  is  a  charge  upon  a 
vessel  based  on  its  tonnage  for  the  privilege  of  entering  or 
leaving  port,  or  of  navigating  certain  waters.  If  this  re- 
striction w^ere  not  in  the  Constitution,  States  might  seriously 
hamper  both  interstate  and  foreign  commerce  under  the  guise 
of  tonnage  dues.  Hence,  any  charge  levied  upon  a  vessel  as 
an  instrument  of  commerce,  or  for  the  privilege  of  trading  at 
a  port,  is  void." 

A  ship,  however,  is  property,  and  as  such  may  be  taxed  by 
the  State  in  which  the  owners  reside."  Furthermore,  wharf- 
age charges,  or  fees  for  the  privilege  of  lying  at  wharves  and 
discharging  cargo  there,  are  not  duties  of  tonnage,  even  if 
graded  according  to  the  carrying  capacity  of  a  vessel." 

Troops  and  Ships  of  War. — The  word  troops  used  in  this 
clause  means  "standing  army,"  not  militia.     The  Constitu- 

^'R.  S.,  4150,  ct  scq. 

"  Roberts  v.  Opdyke,  40  N.  Y.,  259. 

"Steamship  Co.  v.  "Wardens,  6  Wall,  31.  Peete  v.  Morgan,  19 
Wall.,  5S1. 

"Transp.  Co.  v.  Wheeling,  99  U.  S..  273.  St.  r.  Ferry  Co.,  11 
Wall.,  483. 

"  Packet  Co.  v.  Keokuk,  95  U.  S.,  80. 
11 


162  Constitutional  Law 

tion  recognizes  the  necessity  and  value  of  the  States'  militia; 
in  fact  the  2d  Amendment  declares  that  a  well  regulated 
militia  is  necessary  to  the  security  of  a  free  State.  But  for  a 
State  to  maintain  regular  troops  and  vessels  of  war  would  be 
to  assume  the  appearance  of  a  sovereign  and  independent 
power.  The  general  power  to  declare  war,  and  to  maintain 
armies  and  navies,  is  wisely  placed  in  the  Federal  govern- 
ment. But  in  cases  of  sudden  invasion,  or  of  imminent  danger 
of  such,  a  State  may  take  the  necessary  steps  for  self-defense 
without  waiting  for  Congress  to  act. 

Agreements  and  Compacts  Forbidden. — It  should  be  noticed 
that  the  restrictions  in  the  first  clause  of  Section  10  are  abso- 
lute; those  in  the  second  and  third  clauses  are  qualified.  In 
the  first  all  treaties,  alliances  and  confederations  among  the 
States  are  wholly  forbidden;  in  the  third  States  may  enter 
into  compacts  and  agreements  if  Congress  consents.  What  the 
precise  difference  is  between  "  treaties,  alliances  and  con- 
federations," and  "  compacts  and  agreements,"  the  Constitu- 
tion does  not  make  clear.  But  the  reasonable,  if  not  probable, 
intent  of  these  two  restrictions  so  different  in  character  is, 
on  the  one  hand,  to  forbid  absolutely  all  acts  that  would  tend 
to  increase  the  power  and  influence  of  one  State,  or  group  of 
States,  at  the  expense  of  other  States,  or  of  the  national  gov- 
ernment, or  that  would  tend  to  clothe  a  State,  or  group  of 
States',  with  the  dress  of  sovereignty ;  on  the  other  hand,  it  is 
not  to  make  impossible  that  reasonable  intercourse  and  mutual 
action  concerning  questions  of  boundary  and  other  matters  of 
common  interest  which  should  tend  to  promote  harmony 
among  adjoining  States,  but  which  do  not  immediately  con- 
cern the  Federal  government.  This  matter  was  discussed 
somewhat  under  Section  10,  Clause  1,  page  151,  and  need  not 
be  further  treated  here. 

When  the  consent  of  Congress  is  necessary  to  legalize  the  act 
of  a  State  that  consent  may  be  expressly  given,  or  it  may  be 


Limitations  on  the  States  163 

implied  from  the  subsequent  attitude  of  Congress.  It  is 
implied  when  Congress  adopts  the  particular  act  by  sanction- 
ing its  objects  and  enforcing  them.  Where  a  State  is  ad- 
mitted into  the  Union  upon  a  compact  between  it  and  the 
State  of  which  it  was  formerly  a  part  the  act  of  admitting  the 
State  is  an  implied  consent  to  the  compact." 

Retrospect. — Here,  at  the  end  of  the  first  Article  to  the 
Constitution,  it  is  well  for  the  student  to  reflect  a  little  upon 
what  he  has  read.  It  was  the  task  of  the  makers  of  the  Con- 
stitution to  sot  up  a  strong  central  government  without  making 
it  despotic,  to  bring  into  harmony  thirteen  jarring  States,  and 
to  make  them  subordinate  to  that  government,  without  making 
them  subject  to  it.  That  they  did  the  task  well,  later  history 
has  amply  shown.  In  the  language  of  Chief  Justice  Story, 
"  We  cannot  but  be  struck  with  the  reflection,  how  admirably 
this  distribution  and  division  of  legislative  powers  between  the 
State  and  the  national  governments  are  adapted  to  preserve 
the  liberty  and  promote  the  general  happiness  of  the  people  of 
the  United  States."  " 

"Case  of  the  admission  ol  Kentucky.  (See  Green  v.  Blddle, 
8  Wheat.,  85.) 

•*  Story's  Constitutional  Law,  Vol.  2,  312. 


CHAPTER  V 

THE  EXECUTIVE  POWER 
Article  2,  Sections  1-4 


THE  EXECUTIVE  TOWER 
Article  2 

Section  1,  Clause  1. — The  Executive  power  shall  be  vested 
in  a  President  of  the  United  States  of  America.  He  shall 
hold  his  office  during  the  term  of  four  years,  and,  together 
with  the  Vice  President,  chosen  for  the  same  term,  be 
elected  as  follows: 

Executive  Power. — The  judicial  and  the  legislative  powers 
are  vested  in  many  persons,  the  executive  in  one.  Executive 
power  is  directing  power.  Human  experience  has  shown  that 
such  power  is  best  lodged  in  a  single  responsible  hand ;  that  to 
divide  it  is  to  divide  responsibility  and  thereby  open  the  way 
to  dissension,  feebleness,  and  probable  failure.  One  defect 
of  Eome  as  a  republic  was  that  it  had  too  many  executives; 
the  great  trouble  with  the  Articles  of  Confederation  was  that 
they  provided  for  no  executive,  but  placed  all  powers  of  govern- 
ment in  a  congress  of  a  varying  size.  On  the  other  hand,  laws 
can  best  be  made  and  judgments  most  fairly  rendered  by  as- 
semblies of  men,  for  such  matters  require  deliberation,  dis- 
cussion, and  the  meeting  of  many  minds. 

Executive  Immunity. — It  is  the  work  of  the  Chief  Executive 
to  see  that  the  laws  passed  by  Congress  are  faithfully  carried 
out,  and  in  a  large  sense  to  direct  the  business  policy  of  the 
nation.  In  carrying  out  his  work  the  President  is  assisted  by 
an  army  of  minor  officials,  who  are  responsible  to  him  or  to  the 
courts  for  the  faithful  performance  of  their  duties.  But  the 
President  is  responsible  to  none.  He  is  above  the  law  in  the 
exercise  of  the  functions  of  his  office.  For  willful  misfeasance 
he  may  be  impeached  by  Congress  and  removed  from  office,  and 
if  at  the  end  of  his  term  he  has  been  found  weak  or  in  any  way 
undesirable  he  may  fail  of  re-election  to  a  second  term ;  but  in 


168  Constitutional  Law 

no  other  way  can  he  be  made  to  suffer  for  acts  done  in  the  per- 
formance of  official  duty.  He  (cannot  be  controlled  by  the 
judiciary  by  mandamus  proceedings/  by  injunction/  or  by 
any  other  means."  Executive  officers  of  lesser  rank,  such  as 
heads  of  departments,  are  likewise  exempt  from  judicial  in- 
terference in  respect  to  acts  that  involve  their  discretion,  but 
not  in  respect  to  ministerial  acts,  or  acts  required  by  the  law 
to  be  done.*  As  to  unofficial  acts  done  by  the  President  and 
other  executive  officers  there  is  no  immunity.  That  is,  for 
unlawful  acts  done  as  private  citizens  they  are  probably  as 
amenable  to  the  courts  as  are  other  private  citizens. 

Term  of  Office. — In  the  Constitutional  Convention  it  was 
suggested  that  the  presidential  term  be  limited  to  seven  years, 
and  that  there  should  be  no  re-election.  Both  these  sugges- 
tions failed  of  adoption.  The  office  was  finally  limited  in 
length  to  four  years,  and  no  clause  was  inserted  in  the  Consti- 
tution forbidding  a  re-election.  Under  the  law  there  is  no 
limit  to  the  number  of  presidential  terms  to  which  a  man  may 
be  elected;  but  the  general  feeling  among  the  people  has 
always  been  that  third-term  Presidents  are  not  desirable.  A 
number  of  Presidents  have,  however,  served  two  terms. 

Whether  one  term  is  better  than  two,  and  whether  re- 
election should  be  forbidden,  are  perhaps  idle  questions  to  dis- 
cuss here.  On  general  principles  it  would  seem  that  the  term 
of  office  of  the  Chief  Executive  should  not  be  so  long  as  to 
allow  a  bad  man  in  office  to  bring  ruin  on  the  country,  or  so 
short,  or  the  number  of  terms  so  limited,  as  to  deprive  the 
nation  prematurely  of  the  services  of  a  good  man. 

*  Boynton  v.  Blaine,  139  U.  S.,  306. 

» New  Orleans  v.  Paine,  147  U.  S.,  261.  Miss.  v.  Johnson,  4  Wall., 
475. 

*  Spaulding  v.  Vilas,  161  U.  S.,  483. 

*  Kendall  v.  U.  S.,  12  Peters,  524. 


The  Executive  Power  169 

Section  1,  Clause  2. — Each  State  shall  appoint  in  such 
manner  as  tlie  legislature  thereof  may  direct,  a  number 
of  electors  equal  to  the  whole  number  of  Senators  and 
Representatives  to  which  the  State  may  be  entitled  in  the 
Congress;  but  no  Senator  or  Representative,  or  person 
holding  an  office  of  trust  or  profit  under  the  United  States, 
shall  be  appointed  an  elector. 

Presidential  Electors. — Historically  this  clause  is  a  remark- 
able illustration  of  how  a  part  of  a  written  constitution  may 
be  changed  in  its  obvious  purpose  without  repealing  a  word 
or  blotting  a  line.  By  it  the  framers  of  the  Constitution  evi- 
dently meant  to  do  two  things:  to  take  the  election  of  the 
President  out  of  the  hands  of  the  people,  and  to  place  it  above 
popular  clamor  and  party  prejudice.  They  failed  largely  in 
both.  That  the  President  should  not  be  chosen  by  the  people 
they  placed  his  election  in  the  hands  of  a  few  electors  to  be 
appointed  by  the  States  in  such  manner  as  the  legislatures 
thereof  should  direct.  Uniformity  was  not  required,  and  for 
many  years  there  was  none.  For  a  time  the  legislatures  of 
some  States  appointed  the  electors;  in  others  they  directed 
that  the  electors  should  be  chosen  by  the  people  voting  in  dis- 
tricts; in  others  by  general  ticket.  Since  1872,  however,  all 
the  States  have  chosen  their  electors  by  the  last  method.  That 
is,  in  every  State  at  presidential  elections  the  people  vote  for 
the  electors,  who  in  turn  vote  for  the  President.  Thus,  in- 
directly at  least,  the  people  vote  for  the  Chief  Executive.  That 
the  appointment  of  electors  has  failed  to  remove  the  election 
of  the  President  from  popular  clamor  and  party  prejudice  is 
obvious  to  the  most  indifferent  student  of  politics.  It  may  be 
that  the  first  two  or  three  bodies  of  electors  chosen  cast  their 
ballots  quite  independent  of  parties.  But  the  machinery  of 
politics  hag  since  grown  with  the  development  of  the  country, 
find  the  high  purpose  and  significance  of  the  electoral  body 
have  become  quite  lost.  Presidential  electors  to-day,  instead 
of  being  free  from  party  politics,  are  bound  entirely  by  them. 


170  Constitutional  Law 

An  independent  elector  is  unknown.  Eepublican  electors  cast 
their  ballots  for  the  Republican  nominee,  Democratic  electors 
cast  theirs  for  the  Democratic  nominee.  Thus,  although  the 
people  actually  vote  for  the  presidential  electors — for  their 
names  appear  on  the  official  ballots,  practically  they  vote  for 
the  President,  since  the  election  of  a  majority  of  Eepublican 
electors  means  the  election  of  a  Eepublican  President,  and  vice 
versa.  As  soon  therefore  as  the  electors  have  been  voted  in, 
it  is  known  who  is  to  be  the  next  President ;  and  the  act  of  the 
electors  in  casting  their  ballots  later,  though  a  solemn  func- 
tion, has  come  to  be  an  empty  form.° 

The  letter  of  this  clause  of  the  Constitution  has  thus  been 
kept,  but  its  purpose  evaded.  It  is  better  so,  for  there  is  little 
reason  why,  in  a  republic,  the  President  should  not  represent 
as  nearly  as  possible  the  choice  of  the  people.  On  general 
principles  it  is  better  to  interpret  a  constitution  literally 
rather  than  figuratively ;  strictly  rather  than  loosely.  But  the 
electoral  system,  as  made  imperative  by  the  Constitution,  is 
at  best  awkward.  It  is  complex  in  operation,  and  it  sometimes 
fails  to  register  the  wish  of  a  majority  of  the  people,  even  as  at 
present  developed,  for  the  candidate  receiving  the  most 
electoral  votes  is  not  always  the  choice  of  the  majority  of  the 
people. 

A  simjDle  hypothetical  case  will  show  how  this  is  possible. 
Suppose  five  States  only  are  concerned  in  the  election  of  a 
President.  Suppose  four  of  these  States  control  three  electoral 
votes  each,  and  the  other  State  ten.  The  four  small  States  may 
go  Democratic  by  the  slight  plurality  of  1000  each ;  the  large 
State  may  go  Eepublican  by  a  large  plurality  of  100,000. 

'  So  strong  is  this  adherence  to  party  that  the  presidential  vote 
of  a  State  may  be  divided,  according  to  the  political  faith  of  the 
electors.  In  Maryland,  in  1909,  five  Democratic  electors  were 
chosen  and  one  Republican,  and  each  cast  his  ballot  for  the  candi- 
date of  the  party  that  chose  him. 


The  Executive  Power  171 

What  is  the  result?  Under  the  electoral  system  the  Demo- 
cratic candidate  is  elected,  for  he  receives  twelve  electoral  votes 
against  the  Ixcpublican's  ten.  Under  any  other  system,  on 
the  otlier  hand,  the  Republican  would  be  elected,  for  his 
plurality  of  100,000  in  the  one  State  would  offset  the  sum  of 
the  small  Democratic  pluralities  in  the  other  four  States. 
This  is  somewhat  the  situation  that  developed  in  1888.  Mr. 
Cleveland  in  that  year  received  a  plurality  of  95,534  votes, 
yet  from  the  electors  he  received  but  1G8  votes  against  Mr. 
Harrison's  233. 

The  Electoral  College. — The  whole  body  of  electors  is 
commonly  known  as  the  electoral  college.  Its  size  varies  with 
the  growth  of  Congress,  for  each  State  is  entitled  to  as  many 
electors  as'  it  has  national  Senators  and  Eepresentatives.  As 
to  the  qualifications  of  the  electors,  the  Constitution  is  nega- 
tive rather  than  positive.  National  legislators,  and  Federal 
office  holders,  and  those  barred  by  the  14th  Amendment,  may 
not  be  appointed  electors.    Anybody  else  may  be. 

AMENDMENT  12 ' 

The  electors  shall  meet  in  their  respective  States,  and 
vote  by  ballot  for  President  and  Vice  President,  one  of 
whom,  at  least,  shall  not  be  an  inhabitant  of  the  same 
State  with  themselves;  they  shall  name  in  their  ballots 
the  person  voted  for  as  President,  and  in  distinct  ballots 
the  person  voted  for  as  Vice  President,  and  they  shall 
make  distinct  lists  of  all  persons  voted  for  as  President 
and  of  all  persons  voted  for  as  Vice-President,  and  of  the 
number  of  votes  for  each,  which  lists  they  shall  sign  and 
certify,  and  transmit  sealed  to  the  seat  of  the  government 
of  the  United  States,  directed  to  the  president  of  the 
Senate;  the  president  of  the  Senate  shall,  in  the  presence 
of  the  Senate  and  House  of  Representatives,  open  all  the 
certificates  and  the  votes  shall  then  be  counted;  the  per- 
son having  the  greatest  number  of  votes  for  President 
shall  be  the  President,  if  such  number  be  a  majority  of  the 

'Adopted  in  1S04. 


172  Constitutional  Law 

whole  number  of  electors  appointed;  and  if  no  person 
have  such  majority,  then  from  the  persons  having  the 
highest  numbers  not  exceeding  three  on  the  list  of  those 
voted  for  as  President,  the  House  of  Representatives  shall 
choose  immediately,  by  ballot,  the  President.  But  in 
choosing  the  President,  the  votes  shall  be  taken  by  States, 
the  representation  from  each  State  having  one  vote;  a  quo- 
rum for  this  purpose  shall  consist  of  a  member  or  mem- 
bers from  two-thirds  of  the  States,  and  a  majority  of  all 
the  States  shall  be  necessary  to  a  choice.  And  if  the  House 
of  Representatives  shall  not  choose  a  President  whenever 
the  right  of  choice  shall  devolve  upon  them,  before  the 
fourth  day  of  March  next  following,  then  the  Vice  Presi- 
dent shall  act  as  President,  as  in  the  case  of  the  death  or 
other  constitutional  disability  of  the  President.  The  per- 
son having  the  greatest  number  of  votes  as  Vice  President 
shall  be  the  Vice  President,  if  such  number  be  a  majority 
of  the  whole  number  of  electors  appointed,  and  if  no  per- 
son have  a  majority,  then  from  the  two  highest  numbers 
on  the  list,  the  Senate  shall  choose  the  Vice  President;  a 
quorum  for  the  purpose  shall  consist  of  two-thirds  of  the 
whole  number  of  Senators,  and  a  majority  of  the  whole 
number  shall  be  necessary  to  a  choice.  But  no  person  con- 
stitutionally ineligible  to  the  office  of  President  shall  be 
eligible  to  that  of  Vice  President  of  the  United  States. 

Election  of  President.  12th  Amendment.— -Until  1804  the 
President  was  elected  by  the  method  prescribed  in  the  3d 
Clause  of  Section  1,  Article  2.  The  adoption  of  the  12th 
Amendment  in  that  year  made  the  clause  a  dead  letter,  and 
since  then  the  election  of  the  President  has  been  carried  on  in 
accordance  with  the  Amendment.  The  provisions  of  the  12th 
Amendment  are  plain.  The  diiference  between  it  and  the 
clause  which  it  abrogated  may  readily  be  seen  by  a  careful 
comparison  of  the  two.  It  is  not  necessary  to  discuss  this 
difference  here,  but  it  may  be  worth  while  to  draw  attention 
to  certain  contingencies  for  which  the  12th  Amendment  makes 
wise  provision.     (For  the  repealed  clause  see  p  327.) 


The  Executive  Power  173 

Contingencies. — 1.  If  no  candidate  receives  a  majority  of 
the  electoral  votes,  the  choice  then  devolves  on  the  House  of 
Eepresentatives,  which  must  decide  by  ballot,  from  those  per- 
sons on  the  list  of  candidates  not  exceeding  three,  who  shall  be 
President.  This  duty  has  devolved  on  the  House  twice :  once 
before  the  adoption  of  the  12th  Amendment,  and  once  after 
it.  In  1800  Thomas  Jefferson  and  Aaron  Burr  tied  for  first 
choice.  The  election  therefore  went  to  the  House,  and  it 
required  36  ballotings  by  that  body  to  break  the  tie.  This 
dilemma  was  largely  responsible  for  the  adoption  of  the  12th 
Amendment.  The  other  instance  occurred  in  1824  when  John 
Quincy  Adams  was  chosen  over  Andrew  Jackson  and  others. 

2.  If  no  person  receives  a  majority  of  the  electoral  votes  for 
Vice  President,  the  Senate  must  choose  from  the  two  highest 
on  the  list  of  candidates.  This  has  happened  once :  Eichard 
M.  Johnson  was  chosen  by  the  Senate  in  1836.  That  this  con- 
tingency should  be  settled  by  the  Senate  is  peculiarly  fitting, 
for  the  Vice  President  becomes  the  Senate's  presiding  officer. 

3.  In  case  the  House,  when  the  choice  of  President  devolves 
upon  it,  fails  to  elect  before  the  4th  of  March  next  following, 
then  the  Vice  President  becomes  President,  as  he  would 
naturally  on  the  latter's  death  or  permanent  disability.  This 
has  never  yet  happened.  As  to  what  must  be  done  should  both 
the  House  and  the  Senate  fail  to  perform  their  electoral  duty 
by  the  4th  of  March  the  Constitution  docs  not  provide. 

State  Influence  on  Elections. — In  presidential  elections  the 
influence  of  the  States  as  separate  commonwealths  is  strongly 
felt.  In  the  first  place,  the  method  of  appointing  electors  is 
left  to  the  State  legislatures.  In  the  second  place,  although 
the  people  do  indirectly  elect  their  President,  they  do  not  act 
in  so  doing  as  a  collective  unit,  but  as  segregated  into  their 
local  commonwealths,  that  is,  the  States.  And  in  the  third 
place,  in  case  the  election  of  either  President  or  Vice  President 
goes  to  the  House  or  the  Senate,  the  voting  there  is  strictly  by 


174  Constitutional  Law 

States,  each  State  having  one  vote.  In  this  proceeding  the 
smallest  and  least  populous  State  has  as  much  authority  as  the 
largest  and  most  populous. 

In  the  transaction  of  this  business  a  quorum  in  each  House 
consists  of  a  representation  from  two-thirds  of  the  States; 
whereas  in  ordinary  legislation  a  bare  majority  of  the  members 
is  sufficient,  with  no  reference  to  States:  and  although  a  bill 
may  be  passed  by  a  majority  vote  of  a  quorum,  the  President 
or  Vice  President  is  elected  by  a  majority  vote  of  all  the  States. 
It  requires  little  mathematics  to  show  that  such  an  important 
thing  as  the  election  of  the  Chief  Executive  may  be  done  when 
left  to  the  House  by  a  much  smaller  number  than  is  necessary 
to  transact  ordinary  legislation. 

Presidential  Nominations;  Primaries. — The  Constitution 
does  not  even  suggest  how  candidates  for  the  office  of  Presi- 
dent shall  be  chosen.  The  method  in  vogue  to-day  is  the  result 
of  expediency  and  convenience  rather  than  of  law.  Until  1833 
nominations  were  made  usually  by  the  legislatures  of  the 
States ;  since  then  they  have  been  made  by  conventions  of  dele- 
gates. These  conventions  are  strictly  party  affairs,  the  several 
political  parties  in  the  country  holding  their  separate  meetings 
for  the  specific  purpose  of  nominating  candidates  for  the 
presidency.  To  these  nominating  conventions  each  State  is 
allowed  to  send  twice  as  many  delegates  as  it  has  Senators  and 
Ecpresentatives  in  Congress.  But  it  has  so  often  happened 
that  a  few  leading  spirits  have  been  able  to  control  the  con- 
ventions and  virtually  to  name  the  person  that  later  was  to 
become  President,  that  many  States  now  hold  primary,  or 
preliminary,  elections,  in  which  the  people  are  given  a  chance 
to  indicate  their  choice  for  President.  These  "presidential 
primaries,"  as  they  are  called,  are  not  binding,  they  merely 
make  plain  the  wishes  of  the  majority  of  the  Republicans,  or 
of  the  Democrats,  or  of  any  other  great  party  in  the  State, 
respecting  the  men  from  whom  their  delegates  in  the  conven- 


The  Executive  Power  K5 

tion  are  later  to  choose  a  candidate.  After  such  preliminary 
elections,  liowcvcr,  the  delegates  are  more  likely  to  vote  for  the 
man  who  has  been  the  choice  of  the  majority  in  their  respective 
parties  than  for  some  other  who  is  not.  Thus  primary  elec- 
tions are  a  part  of  the  present-day  progressive  movement  to 
prevent  the  control  of  elections  and  the  dictation  of  candidates 
by  the  few.  They  are  but  another  step  in  the  direction  of  the 
popular  election  of  Presidents;  another  step  away  from  the 
method  prescribed  by  the  Constitution.  \^ 

Section  1,  Clause  4. — The  Congress  may  determine  the 
time  of  choosing  the  electors,  and  the  day  on  which  they 
shall  give  their  votes;  which  day  shall  be  the  same 
throughout  the  United  States. 

Election  Day. — By  the  authority  of  this  clause  Congress  has 
passed  several  statutes  regulating  presidential  elections,  but 
since  1845  the  electors  have  been  chosen  on  the  Tuesday  next 
after  the  first  Monday  in  November,  of  every  fourth  year. 
Since  1887  the  electors  have  been  required  to  meet  in  their 
respective  States  and  cast  their  ballots  on  the  second  Monday 
in  January  immediately  following  their  election. 

How  the  Election  is  Officially  Determined. — By  the  act  of 
1887  the  Governor  of  each  State  is  required,  as  soon  as  possible 
after  the  results  of  the  general  election  are  known,  to  make 
out  a  certificate  stating  that  there  has  been  a  proper  ascertain- 
ment of  electors  in  his  State,  and  giving  the  names  of  the 
electors  and  the  number  of  votes  for  each.  He  is  then  required 
to  transmit  one  copy  of  this  election  certificate  to  the  Secretary 
of  State,  and  to  deliver  three  to  the  State  electors  on  or 
before  the  day  of  their  meeting,  all  copies  to  be  under  the  seal 
of  the  State.  When  the  electors  meet  on  the  second  Monday 
in  January  in  their  respective  States  they  are  required  to  make 
out  and  sign  three  certificates  of  all  the  votes  given  by  them 
for  President  and  Vice  President,  and  to  enclose  in  each  of 
these  certificates  one  of  those  received  from  the  Governor. 


176  Constitutional  Law 

One  of  these  certificates,  with  its  enclosure,  is  then  sent  by- 
messenger  to  the  President  of  the  Senate ;  another  is  forwarded 
to  the  same  person  by  mail;  the  third  is  deposited  with  the 
judge  of  the  district  in  which  the  electors  are  assembled. 

On  the  second  Wednesday  in  February  following,  at  one 
o'clock  in  the  afternoon,  both  Houses  of  Congress  are  required 
to  convene  in  the  Eepresentative  chamber  to  hear  the  result 
of  the  voting.  The  President  of  the  Senate  presides  and  opens 
the  certificates  of  election  in  the  alphabetical  order  of  the 
States.  Tellers  previously  appointed  read  and  record  the 
votes,  and  when  this  has  been  done,  the  presiding  officer  an- 
nounces the  result.  The  names  of  the  newly  elected  President 
and  Vice  President,  together  with  the  list  of  votes,  are  then 
entered  on  the  journals  of  the  two  Houses.  This  proceeding 
is  very  formal  and  quite  in  keeping  with  the  dignity  of  the 
high  office  of  President ;  but  coming  as  it  does  three  months 
after  the  people  have  voted,  when  everybody  knows  who  the 
new  Executive  is  to  be,  it  is  not  without  a  certain  droll  aspect 
to  those  critics  who  are  humorously  inclined. 

Double  Returns. — It  sometimes  happens  that  two  sets  of 
certificates  of  election,  each  purporting  to  be  a  correct  return 
of  the  electoral  vote,  are  sent  in  from  the  same  State.^  Where 
voting  is  close  it  is  possible  for  the  Democratic  electors  to 

^  The  Hayes-Tilden  election,  in  1876,  is  a  case  in  point.  The 
result  of  the  election  depended  on  disputed  returns  from  several 
States.  Congress  finally  settled  the  controversy  by  appointing  a 
commission  of  fifteen  members:  five  Senators,  five  Representa- 
tives, and  five  Justices  from  the  Supreme  Court.  As  it  happened, 
the  five  Senators  were  Republican,  the  Representatives  were 
Democratic;  two  of  tlie  five  judges  were  Democratic,  and  three 
were  Republican;  and  all  voted  on  strict  party  lines.  In  each 
case  the  commission  decided  in  favor  of  the  Republican  returns 
by  the  close  vote  of  eight  to  seven.  Hayes  was  accordingly  elected 
by  a  vote  of  185  to  184.  The  law  under  which  this  determination 
wag  made  was  not  intended  to  apply  to  future  disputes. 


The  Executive  Power  1T7 

believe  that  they  are  elected,  when  in  fact  the  Republican 
electors  receive  a  slight  majority  instead,  or  vice  versa,  and 
each  group  of  electors  sends  in  its  certificate  of  election.  To 
meet  this  dilemma  the  act  of  1887  provides  that  each  State 
may  by  law  provide  a  method  for  determining  the  correct  vote 
of  that  State.  If  such  determination  is  reached  at  least  six 
days  before  the  meeting  of  the  electors,  it  shall  be  final;  if 
not,  provision  is  made  for  its  settlement  by  Congress.  It  has 
been  decided  that  such  a  matter,  because  it  is  political,  not 
judicial,  is  not  within  the  jurisdiction  of  any  court. 

Section  1,  Clause  5. — No  person,  except  a  natural-born 
citizen,  or  a  citizen  of  the  United  States  at  the  time  of  the 
adoption  of  this  Constitution,  shall  be  eligible  to  the  office 
of  President;  neither  shall  any  person  be  eligible  to  that 
oflSce  who  shall  not  have  attained  to  the  age  of  thirty-five 
years,  and  been  fourteen  years  a  resident  within  the 
United  States. 

Qualifications  of  the  President. — The  qualifications  of 
the  President,  like  those  of  Senators  and  Representatives,  re- 
late to  citizenship,  age  and  residence.  Naturalized  citizens  are 
not  now  eligible  to  the  presidency ;  but  only  citizens  of  native 
birth.  At  the  time  of  the  adoption  of  the  Constitution,  how- 
ever, many  prominent  inhabitants  were  of  foreign  birth,  some 
of  whom  were  members  of  the  Convention.  These  were  ex- 
cepted from  the  general  rule.  Whether  it  was  wise  to  forever 
prohibit  citizens  of  alien  birth,  except  those  in  being  at  the 
time  of  the  adoption  of  the  Constitution,  from  aspiring  to  the 
high  office  of  President  is  open  to  question,  for  certainly 
many  able,  distinguished  and  patriotic  citizens  of  the  United 
States  have  been  foreign  born.  But  the  evident  purpose  of 
the  restriction  was  to  make  the  office  purely  American.  Noth- 
ing in  the  clause  debars  women  from  the  presidency ;  but  this 
possibility  was  probably  not  contemplated  by  the  Convention. 

The  fourteen  years  residence  required  by  this  clause  does 
12 


178  Constitutional  Law 

not  bar  citizens  who  have  been  abroad  in  the  public  service/ 
or  on  private  business.  The  fourteen  years  need  not  be  con- 
secutive. If  a  citizen,  natural  born,  has  had  for  fourteen  years 
previous  to  his  nomination  to  the  presidency  such  an  in- 
habitancy as  includes  a  domicile  in  the  United  States,  he  is' 
eligible. 

The  Vice  President. — The  Constitution  does  not  prescribe 
the  qualifications  of  the  Vice  President.  The  12th  Amend- 
ment, hovrever,  declares  that  "  no  person  constitutionally  in- 
eligible to  the  office  of  President  shall  be  eligible  to  that  of 
Vice  President  of  the  United  States."  Furthermore,  the  Vice 
President  is  the  lawful  successor  to  the  President  in  the  event 
of  the  latter's  death  or  disability.  It  would  necessarily  follow 
from  this,  even  without  the  12th  Amendment,  that  the  qualifi- 
cations for  the  two  Federal  offices  must  be  the  same. 

Section  1,  Clause  6. — In  case  of  the  removal  of  the  Presi- 
dent from  office,  or  of  his  death,  resignation,  or  inability 
to  discharge  the  powers  and  duties  of  said  office,  the  same 
shall  devolve  on  the  Vice  President;  and  the  Congress 
may  by  law  provide  for  the  case  of  removal,  death,  resig- 
nation, or  inability,  both  of  the  President  and  Vice  Presi- 
dent, declaring  what  officer  shall  then  act  as  President, 
and  such  officer  shall  act  accordingly,  until  the  disability 
be  removed,  or  a  President  shall  be  elected. 

Presidential  Succession. — Should  the  office  of  President  be- 
come vacant  by  either  death,  removal  or  resignation,  the  Vice 
President  immediately  becomes  President  by  operation  of  law, 
and  he  may  hold  office  until  the  end  of  the  original  term. 
Should  the  President  become  temporarily  disabled  instead,  the 
Vice  President  assumes  the  duties  of  the  office  only  until  the 
disability  is  removed.  But  in  case  the  offices  of  both  the  Presi- 
dent and  the  Vice  President  become  vacant  during  the  term, 
the  duty  of  filling  the  Chief  Executive's  chair  devolves  on 

'  James  Buchanan  was  minister  to  England  just  prior  to  his 
election  to  tlie  presidency. 


The  Executive  Power  179 

Congress.  Accordingly,  in  1792,  Congress  provided  that,  in 
such  a  case,  the  president  pro  tempore  of  the  Senate  should 
act  as  President,  or  if  there  were  no  such  person  to  act,  then 
the  Speaker  of  the  House  of  Representatives.  In  1886,  how- 
ever, this  law  was  repealed,  and  the  present  law  of  presidential 
succession  was  enacted.  This  provides  that,  in  case  of  the 
default  of  both  the  President  and  Vice  President,  the  duties 
of  the  office  of  the  Chief  Executive  shall  devolve  on  the  mem- 
bers of  the  cabinet  in  order  of  seniority,  to  wit :  the  Secretary 
of  State,  the  Secretary  of  the  Treasury,  the  Secretary  of  War, 
the  Attorney  General,  the  Postmaster  General,  the  Secretary 
of  the  Navy,  the  Secretary  of  the  Interior,  etc.  It  is  probable 
that  a  cabinet  minister  would  not  in  this  case  become  President 
in  fact;  he  would  merely  fulfill  the  duties  of  the  office  until  a 
new  President  could  be  elected,  or  until  the  disability  of  either 
the  President  or  the  Vice  President,  if  that  were  the  cause  of 
the  vacancy,  should  be  removed.  But  no  cabinet  member  can, 
by  the  law  of  1886,  act  as  President,  who  docs  not  have  the 
constitutional  qualifications  of  age,  citizenship,  and  residence. 
Several  Presidents  have  died  in  office.*  Several  Vice  Presi- 
dents also  have  died  in  office,  and  one  has  resigned,"  but  at 
no  time  have  the  offices  of  both  the  President  and  the  Vice 
President  become  vacant  during  the  alloted  term.  No  Presi- 
dent has  as  yet  resigned  from  office,  and  none  has  been  re- 
moved. If  one  should  desire  to  resign.  Congress  has  provided 
that  the  resignation  must  be  in  writing,  subscribed  by  the 
President,  and  delivered  to  the  office  of  the  Secretary  of  State." 

Section  1,  Clause  7. — The  President  shall,  at  stated  times, 
receive  for  his  services  a  compensation,  which  shall 
neither  be  increased  nor  diminished  during  the  period 

'W.  H.  Harrison,  1841;  Zachary  Taylor,  1850;  A.  Lincoln,  1865; 
J.  R.  Garfield,  1881;  W.  McKinley,  1901. 
"  J.  C.  Calhoun,  1832. 
»R.  S.,  151. 


180  Constitutional  Law 

for  which  he  shall  have  been  elected,  and  he  shall  not 
receive  within  that  period  any  other  emolument  from  the 
United  States,  or  any  of  them. 

The  President's  Compensation. — ^IVIen  do  not  aspire  to  the 
presidency  for  the  salary  alone;  that,  in  comparison  with  the 
emoluments  received  by  the  executives  of  certain  other  nations, 
is  relatively  small."  If  the  office  paid  no  salary,  it  would  not 
lack  worthy  aspirants,  for  the  honor  is  greater  than  mere 
money  compensation.  But  in  order  not  to  limit  the  nation's 
highest  office  to  men  of  independent  means,  it  was  wisely  made 
a  salaried  position.  The  salary  of  the  first  President  was 
fixed  by  Congress  at  $25,000  per  year;  that  of  the  Vice  Presi- 
dent at  $5000.  In  1873  these  amounts  were  increased  re- 
spectively to  $50,000  and  $10,000  per  year.  The  latter  was 
reduced  in  1874  to  $8000.  In  1909  the  President's  salary  was 
further  increased  to  $75,000,  that  of  the  Vice  President  to 
$12,000.    These  salaries  are  paid  in  monthly  installments. 

Besides  salary,  the  President  receives  other  emoluments, 
making  the  office  really  more  compensative  than  it  appears  to 
be.  A  furnished  house,  the  White  House,  is  provided  for  the 
President  and  his  family  at  Washington ;  a  fast  vessel  is  at 
his  disposal  for  transportation  on  the  sea;  mileage  is  allowed 
for  inland  travel;  and  there  are  numerous  minor  accessories. 
But  whatever  the  compensation  is.  Congress  must  provide  for 
it  before  the  Executive  enters  on  his  term  of  office,  for  by  the 
present  clause  of  the  Constitution  it  cannot  be  done  during  his 
incumbency;  nor  can  it  be  diminished  within  the  period. 

The  provisions  of  this  clause  secure  the  complete  inde- 
pendence of  the  President,  for  Congress  may  neither  weaken 
his  fortitude  by  working  on  his  necessities,  nor  corrupt  his 
integrity  by  appealing  to  his  avarice ;  and  what  Congress  and 

*'  The  King  of  England  receives  £470,000;  the  Emperor  of  Russia 
receives  no  stated  sum,  but  income  from  over  one  million  square 
miles  of  crown  lands;  the  President  of  France,  1,200,000  fr. 


The  Executive  Power  181 

the  nation  at  large  may  not  do  in  this  respect,  may  not  be  done 
by  any  individual  State. 

Section  1,  Clause  8. — Before  he  enter  on  the  execution  of 
his  office,  he  shall  take  the  following  oath  or  affirmation: 

"I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully 
execute  the  office  of  President  of  the  United  States,  and 
will,  to  the  best  of  my  ability,  preserve,  protect,  and  defend 
the  Constitution  of  the  United  States." 

Oath  of  Office. — It  has  become  customary,  though  not  re- 
quired by  law,  for  the  Chief  Justice  of  the  Supreme  Court  to 
administer  the  oath  of  office  to  the  President-elect.  Anybody 
legally  qualified  to  administer  oaths  could  perform  the  cere- 
mony, but  it  is  perhaps  fitting  that  the  highest  executive  officer 
should  be  sworn  in  by  the  highest  judicial  officer.  The  cere- 
mony of  swearing  in  the  President-elect,  which  is  a  part  of 
the  formalities  of  inauguration,  takes  place  at  noon  on  the  4th 
of  March  next  succeeding  his  election.  Weather  permitting, 
it  is  done  in  the  open  air  before  the  Capitol  in  the  presence  of 
the  two  Houses  of  Congress  and  of  the  assembled  people. 

The  Constitution  does  not  require  the  Vice  President-elect 
to  take  any  special  oath  other  than  the  general  oath  to  support 
the  Constitution  which  is  required  by  Article  8,  Clause  3,  of 
every  executive  officer  of  the  United  States  and  of  the  several 
States.  On  succeeding  to  the  office  of  President,  in  the  event  of 
the  latter's  death,  resignation  or  removal,  the  Vice  President 
takes  the  prescribed  oath  of  office. 

Section  2,  Clause  1. — The  President  shall  be  commander- 
in-chief  of  the  army  and  navy  of  the  United  States,  and  of 
the  militia  of  the  several  States  when  called  into  the  actual 
service  of  the  United  States;  he  may  require  the  opinion, 
in  writing,  of  the  principal  officer  in  each  of  the  executive 
departments,  upon  any  subject  relating  to  the  duties  of 
their  respective  offices,  and  he  shall  have  power  to  grant 
reprieves  and  pardons  for  offenses  against  the  United 
States,  except  in  cases  of  impeachment. 


182  Constitutional  Law 

The  War  Power. — The  President,  as  Chief  Executive  of  the 
nation,  has  supreme  directing  power  over  the  military  and 
the  naval  forces  of  the  United  States.  In  peace  and  in  war 
this  amounts  to  the  same  thing:  namely,  that  the  President 
controls  the  movements  of  the  army  and  the  navy;  he  pre- 
scribes the  stations  and  duties  of  both  offices  and  men ;  he  plans' 
campaigns,  establishes  blockades  and  sieges,  and  directs  all 
marches  and  cruises.  He  may  order  United  States  troops  and 
ships  anywhere  to  protect  Federal  property,  or  American 
citizens  and  their  property.  To  suppress  insurrection,  or  to 
repel  invasion,  he  may  call  the  militia  into  the  service  of  the 
government,  and  then  he  may  exercise  the  same  authority 
over  them  as  over  United  States  troops — except  that  he  cannot 
send  them  beyond  the  confines  of  the  country.  The  President 
may  not  declare  war.  That  great  power  is  vested  in  Congress 
alone;  but  when  Congress  has  declared  war,  it  is  incumbent 
on  the  President  to  direct  all  military  and  naval  operations. 
He  does  not  take  the  field  in  person ;  he  promulgates  his  orders 
through  the  proper  officials  of  the  War  and  the  Navy  Depart- 
ments; or,  what  amounts  to  the  same  thing,  he  approves  or 
disapproves  their  orders  and  suggestions.  Neither  the  courts 
nor  the  legislatures  may  interfere  directly  with  the  President 
as  commander-in-chief.  Indirectly,  however.  Congress  might 
hamper  the  President  considerably,  for  the  House  of  Eepre- 
sensatives  might  refuse  to  appropriate  funds  for  the  main- 
tenance of  war,  and  the  Senate  might  refuse  to  confirm  the 
President's  nominations  to  office. 

Executive  Departments. — The  executive  departments  herein 
mentioned  are  nowhere  defined  in  the  Constitution,  or  their 
number  limited  by  it;  but  from  time  to  time  as  necessity  has 
demanded,  they  have  been  provided  by  law.  There  are  now 
ten  of  these :  the  Department  of  State,  the  Department  of 
the  Treasury,  the  Department  of  War,  the  Department  of 
Justice,  the  Post- Office  Department,  the  Department  of  the 


The  Executive  Power  183 

Navy,  the  Department  of  the  Interior,  the  Department  of 
Agriculture,  and  the  Departments  of  Commerce  and  Labor. 
The  chief  officer  of  each  of  these  departments  is  styled  Secre- 
tary, excei)t  the  heads  of  tlie  departments  of  justice  and  of  the 
post-office,  who  are  titled  respectively  Attorney-General,  and 
Postmaster-General.  The  general  purpose  of  these  depart- 
ments is  to  assist  the  President  in  his  executive  business. 
Thus  the  Department  of  War  controls  the  operations  of  the 
army,  the  Department  of  State  is  the  medium  through  which 
the  government  communicates  with  foreign  governments,  and 
so  on.  Collectively  the  heads  of  the  executive  departments 
form  the  President's  cabinet;  they  are  appointed  by  the  Presi- 
dent, and  they  act  in  an  advisory  capacity  to  him.  At  any 
time  he  may  demand  their  opinions  in  writing  on  any  subject 
relating  to  their  offices.  This  perhaps  has  been  most  fre- 
quently done  of  the  Attorney-General,  whose  published 
opinions  now  fill  many  printed  volumes.  As  authoritative 
statements  of  the  law,  these  opinions  are  entitled  to  great 
respect. 

For  the  origin  of  the  cabinet  we  must  look  to  custom  rather 
than  to  law.  The  Constitutional  Convention  did  not  con- 
template the  creation  of  an  advisory  council  to  the  President, 
but  rather  that  there  should  be  heads  of  departments,  whom 
he  might  consult  individually  and  at  his  pleasure.  Washing- 
ton, however,  formed  his  department  heads  into  an  advisory 
body,  and  the  custom  of  so  doing  has  since  been  followed. 

The  Pardoning"  Power. — Eecognizing  that  human  justice  is 
not  infallil)K',  that  in  the  long  run  justice  is  best  when 
tempered  with  mercy,  the  framers  of  the  Constitution  placed 
in  the  President  the  great  and  almost  unlimited  power  of 
executive  clemency.  In  so  doing,  however,  they  evolved  no 
new  principle :  the  power  to  pardon  has  been  inseparably  con- 
nected with  sovereignty  since  time  immemorial.  But  it  is  a 
vast  power  for  one  man  to  have.     By  it  the  President  may 


184  Constitutional  Law 

render  null  and  void  the  decision  of  the  highest  tribunal;  by 
it  he  may  remit  all  fines  and  debts  due  to  the  government ;  by 
it  he  may  open  the  doors  of  all  the  Federal  prisons ;  and  neither 
Congress  nor  any  court  may  restrict  him  in  the  slightest 
degree."  But  it  was  expected  that  he  would  use  this  power 
with  reason,  and  thus  far  the  people  of  the  United  States  have 
had  little  cause  to  complain  against  the  misuse  of  executive 
grace. 

A  reprieve  is  a  temporary  suspension  of  punishment,  a  stay 
of  execution;  a  pardon  is  a  complete  release  from  penalty. 
The  law  recognizes  four  kinds  of  pardons.  First,  a  pardon 
may  be  complete,  unlimited.  As  such  it  restores  a  criminal 
to  the  condition  of  a  free  citizen,  remitting  all  punishment. 
Second,  it  may  be  conditional,"  as  where  its  force  is  made  to 
depend  on  the  criminal's  doing  some  positive  act,  such  as  leav- 
ing the  country,  or  accepting  a  penalty  in  lieu  of  that  imposed 
by  the  court.  Third,  it  may  be  before  conviction  as  well  as 
after.  Fourth,  it  may  apply  to  individuals  or  to  masses  of 
people.  Where  masses  of  people  are  pardoned,  as  in  the  case 
of  an  unsuccessful  rebellion,  the  executive  act  is  knovra  as 
amnesty.  The  President  may  issue  any  kind  of  pardon  known 
to  the  law. 

The  sole  exception  to  the  President's  pardoning  power  is  in 
cases  of  impeachment.  Since  the  main  ol)jcct  of  impeachment 
is  to  purify  public  offices,  it  is  well  that  the  President  should 
not  have  it  in  his  power  to  prevent  a  thorough  investigation  of 
the  conduct  of  public  officials,  or  to  relieve  them  from  punish- 
ment if  convicted.  Furthermore,  since  the  President  him- 
self is  liable  to  impeachment,  he  might,  if  it  were  not  for  this 
exception,  pardon  himself,  should  occasion  arise. 

Power  of  the  Legislature. — The  only  way  in  which  the 
legislature  can  relieve  offenders  from  the  consequences  of  their 

"  Ex  parte  Garland,  4  Wall.,  333,  380. 

"Ex  parte  Wells,  18  How.,  307;  1  Opinions  of  Att'y-Gen.,  341. 


The  Executive  Power  185 

acts  is  by  repeal  in  o;  the  law  that  defines  the  crime  and  appor- 
tions the  punishment.  Tiie  Constitution  gives  to  Congress  no 
pardoning  power  and  no  authority  either  to  aid  or  to  hinder 
the  Executive  in  the  act  of  clemency.  Herein  the  United 
States  differs  from  Great  Britain,  where  the  power  to  pardon 
is  in  both  Parliament  and  the  Crown. 

Pardoning  Power  in  the  States. — The  power  to  pardon 
oft'enses  against  State  laws  is  usually  in  the  Governor.  The 
constitution  of  the  State  of  Maryland,  for  example,  grants  the 
power  to  the  Governor  in  precisely  the  language  that  the 
United  States  Constitution  grants  it  to  the  President.  In 
some  States,  however,  the  authority  is  vested  in  commissions, 
or  pardon  boards."  This,  on  the  whole,  seems  to  be  the  better 
way.  Executive  clemency  originated  far  back  in  history,  when 
the  king  was  absolute,  and  kingly  grace  was  akin  to  Heaven's 
grace.  But  absolutism  in  earthly  rulers  has  largely  passed 
away.  In  America,  at  least,  executive  officers  are  elected  by 
the  votes  of  the  people,  and  their  terms  of  office  are  limited. 
Frequently  they  are  not  learned  in  the  law,  and  their  general 
calliper  is  often  not  above  that  of  many  of  the  electorate.  That 
an  ordinary  citizen,  therefore,  raised  for  a  brief  while  by 
popular  votes  to  an  exalted  position,  should  be  able  to  set  free 
those  whom  courts  and  juries  have  deemed  it  wise  to  shut  up  is 
little  short  of  the  preposterous." 

Section  2,  Clause  2. — He  shall  have  power,  by  and  with 
the  advice  and  consent  of  the  Senate,  to  make  treaties, 
provided  two-thirds  of  the  Senators  present  concur;  and 

"  In  Massachusetts  it  is  in  the  Governor  and  council;  in  Pennsyl- 
vania, it  is  in  the  Governor  and  the  legislature. 

"  An  Instance  of  the  extreme  use  of  gubernatorial  clemency  oc- 
curred in  1909,  when  Governor  Patterson,  of  Tennessee,  uncon- 
ditionally pardoned  Duncan  Cooper,  accessory  to  the  murder  of 
United  States  Senator  Carmack.  Of  Cooper's  guilt  there  does  not 
seem  to  have  been  any  question. 


186  Constitutional  Law 

he  shall  nominate,  and  by  and  with  the  advice  and  consent 
of  the  Senate,  shall  appoint  Ambassadors,  other  public 
Ministers  and  Consuls.  Judges  of  the  Supreme  Court,  and 
all  other  officers  of  the  United  States,  whose  appointments 
are  not  herein  otherwise  provided  for,  and  which  shall  be 
established  by  law;  but  the  Congress  may  by  law  vest 
the  appointment  of  such  inferior  officers  as  they  think 
proper,  in  the  President  alone,  in  the  courts  of  law,  or  in 
the  heads  of  departments. 

Treaties. — A  treaty  is  an  agreement,  or  contract,  between 
sovereign  States.  In  England,  the  power  to  make  treaties  is  in 
the  Crown;  under  the  Articles  of  Confederation,  it  was  vested 
in  Congress  alone;  under  the  Constitution,  it  is  in  the  Presi- 
dent and  the  Senate.  The  Senate,  however,  acts  in  a  checking 
capacity  only,  for  the  power  of  negotiation  and  inception  is  in 
the  Executive  alone.  Acting  through  the  Secretary  of  State 
and  foreign  representatives,  the  President  makes  all  treaty 
stipulations,  and  the  Senate  may  neither  dictate  a  word  con- 
cerning foreign  relations,  nor  force  the  President  into  any 
particular  line  of  action.  It  is  for  the  Senate  merely  to 
approve  or  to  disapprove  when  the  treaty  is  presented  to  that 
body  for  consideration.  The  words  "  advice  and  consent "  are 
usually  determined  to  mean  consent  only.  Although  it  is  not 
without  prec-edent  for  the  Chief  Magistrate  to  consult  the 
Senate  before  drawing  up  a  treaty,"  he  usually  goes  elsewhere 
for  advice. 

Kinds  of  Treaties. — Treaties  are  either  executed  or  execu- 
tory. An  executed  treaty  brings  into  existence  at  once  a  cer- 
tain state,  or  right.  Such  is  a  treaty  of  peace.  Hostilities  are 
expected  to  cease,  and  a  state  of  peace  to  begin,  with  the  sign- 
ing of  the  treaty,  and  without  further  action  by  either  the 
Executive  or  the  legislature.  An  executory  treaty,  on  the 
other  hand,  necessitates  further  action  by  one  or  both  parties 

"  President  Polk  in  connection  with  the  Oregon  treaty. 


The  Executive  Power  187 

to  the  treaty,  before  the  thing  agreed  to  may  be  said  to  be 
accomplished.  Thus  an  agreement  between  the  United  States 
and  Great  Britain  to  maintain  a  fleet  on  the  African  coast  in 
1842  for  the  suppression  of  the  slave  trade  was  an  executory 
treaty. 

Weakness  of  Treaties. — Suppose  in  the  case  just  mentioned 
the  President  had  neglected  to  order  warships  to  the  African 
coast;  what  could  have  been  done?  Probably  nothing. 
Neither  Congress  nor  the  courts  could  have  forced  the  Presi- 
dent to  execute  the  terms  of  the  treaty.  Furthermore,  a 
statute  of  the  United  States  can  be  enforced  by  the  courts,  but 
no  common  and  superior  tribunal  exists  an}'where,  able  to 
compel  either  party  to  a  treaty  to  keep  its  agreements — except 
the  great  tribunal  of  war."  Therein  lies  the  weakness  of  all 
international  agreements. 

Treaty  Power  Limited. — In  general,  the  treaty  making 
power  extends  to  every  kind  of  treaty.  The  Constitution 
places  no  limits  to  its  exercise,  but  common  sense  may  suggest 
some.  The  power  plainly  cannot  be  so  used  as  to  override  the 
Constitution  itself,  or  to  weaken  or  destroy  the  fundamental 
principles  of  government.  A  treaty  that  should  attempt  to 
deprive  Congress,  or  the  judiciary,  or  the  Executive  of  general 
powers'  granted  by  the  organic  law  would  be  absolutely  null 
and  void."  So  would  a  treaty  that  materially  altered  the 
boundary  lines  of  any  State  without  the  latter's  consent;  or 
that  tended  to  deprive  the  citizens  of  one  State  of  rights  en- 
joyed by  the  citizens  of  other  States. 

Concurrence  of  the  Senate. — Every  treaty  to  which  the 
United  States  is  a  party  must  be  approved  by  the  Senate, 
Although  the  latter  cannot  take  the  initiative,  its  consent  is 
absolutely  necessary  before  any  treat)'  can  become  a  law.  The 
Senate  may,  however,  after  a  treaty  is  presented  to  it  for 

"Foster  v.  Neilson,  2  Peters,  253;  Pomeroy's  Const.  Law,  450. 
"Geofrey  v.  Riggs,  133  U.  S.,  258,  267. 


188  Constitutional  Law 

approval,  suggest  alterations  or  amendments,  or  it  may  ap- 
prove or  condemn  it  in  entirety.  If  amendments  are  sug- 
gested, they  must  be  accepted  by  the  President  and  the  repre- 
sentatives' of  the  foreign  State  before  the  treaty  thus  changed 
can  become  binding.  In  any  case,  the  approval  of  the  Senate 
and  the  signature  of  the  President  are  essential.  A  treaty 
dates  from  the  day  it  is  signed.*" 

The  House  of  Representatives  has  nothing  to  do  with  origi- 
nating, making,  or  ratifying  a  treaty.  It  is  possible,  however, 
for  the  House  to  render  a  treaty  a  nullity  by  refusing,  or 
neglecting,  to  pass'  the  legislation  necessary  to  give  it  effect. 
This  is  in  respect  to  an  executory  treaty.  To  illustrate :  should 
the  treaty  require  the  payment  of  money,  as  in  the  case  of 
the  purchase  of  territory,  the  agreement  can  have  no  effect 
until  the  House  has  voted  the  necessary  funds.  It  is  the  evi- 
dent duty  of  that  body  to  appropriate  money  when  it  is  re- 
quired by  the  terms  of  a  treaty,  but  neither  the  Executive  nor 
the  judiciary  can  compel  it  to  do  so." 

A  State  of  the  Union,  not  being  a  sovereign  power,  can  be 
a  party  to  no  treaty. 

Appointments  to  Office. — Before  a  person  can  be  appointed 
to  office  the  office  must  exist.  The  Constitution  provides  for 
certain  offices;  Congress  has  created  many  more,  and  may 
create  others,  as  necessity  demands.  We  have  seen  how  the 
offices  of  President  and  Vice  President,  Senators  and  Eepre- 
sontatives.  Speaker  of  the  House,  and  certain  minor  positions 
in  both  branches  of  the  legislature  are  filled.  These  are  the 
only  purely  elective  offices  under  the  government.  All  other 
Federal  offices,  and  there  arc  many  thousands  of  them,  are 

'°  Shepard  v.  Ins.  Co.,  40  Fed.  Rep.,  341.  Davis  v.  Police  Jury, 
9  How.,  280. 

"  Before  the  purchase  of  Louisiana,  of  Florida,  and  of  California, 
Presidents  Jefferson,  Monroe,  and  Polk  ascertained  the  wishes 
of  Congress,  thus  apparently  recognizing  the  power  of  the  House 
to  refuse  to  make  appropriations. 


The  Executive  Power  189 

filled  in  the  four  ways  provided  by  this  clause:  by  the  Presi- 
dent and  the  Senate,  by  the  President  alone,  by  heads  of  de- 
partments, and  by  courts  of  law.  The  Constitution  directs 
that  "  Ambassadors,  other  public  Ministers  and  Consuls, 
Judges  of  the  Supreme  Court,  and  all  other  officers  of  the 
United  States,  whose  appointments  are  not  otherwise  herein 
provided  for"  shall  be  appointed  by  the  President  and  the 
Senate.  It  allows  Congress  to  vest  the  appointment  of  all 
other  officers  in  any  of  the  authorities  mentioned  above.  Ac- 
cordingly, Congress  has  vested  the  appointment  of  certain 
officers  in  the  President  alone;  of  certain  others  in  heads  of 
departments;  and  of  still  others  in  courts  of  law.  For  ex- 
ample: the  President  alone  appoints  the  Librarian  of  Con- 
gress; the  Postmaster-General  appoints  all  postmasters  whose 
salaries  are  less  than  $1000.00  per  annum;  Federal  courts 
provide  their  own  stenographers  and  clerks,  the  Supreme 
Court,  its  own  marshal  and  reporter.  There  are  no  officers 
mentioned  in  the  Constitution,  "  whose  appointments  are  not 
herein  otherwise  provided  for,"  unless  the  heads  of  depart- 
ments are  such.  These  are  appointed  by  the  President  and 
the  Senate.  Sliould  Congress  create  an  office  and  fail  to  direct 
how  it  should  be  filled,  it  follows  from  this  clause  that  the 
appointment  thereto  would  vest  in  the  President  and  the 
Senate. 

Power  to  Remove. — History  teaches,  and  most  writers  on 
constitutional  law  agree,  that  the  power  to  appoint  to  a 
national  office  is  a  ruler's  prerogative,  and  that  the  power  to 
remove  from  office  is  a  necessary  consequent  of  the  power  to 
appoint.  The  Constitution  limits  the  appointing  power  of  the 
President  somewhat  by  compelling  him  to  send  the  nomina- 
tions to  certain  offices  to  the  Senate  for  approval ;  it  is  silent 
regarding  the  power  to  remove  from  office.  Had  tlie  Consti- 
tution said  nothing  about  appointments  to  office,  the  Presi- 
dent's right  to  fill  all  Federal  offices  by  personal  appointees 


190  CONSTITUTIOXAL   LaW 

would  have  been  absolute.  In  the  absence  of  anj^  reference  in 
the  instrument  to  the  matter  of  removal,  it  follows  that  the 
Executive's  right  thereto  is  without  limitation.  This,  at 
least,  has  been  the  opinion  of  Story,  Pomeroy,  Cooley,  and 
other  eminent  publicists;  it  was  the  opinion  of  the  majority 
in  the  Convention;  every  President  has  exercised  the  right, 
and  the  matter  may  be  regarded  as  settled.  The  Tenure 
of  Office  Act,  passed  in  18G7,  denied  to  the  President  the 
power  to  remove  from  office  in  all  cases  where  the  consent  of 
the  Senate  was  necessary  to  fill  the  office,  without  first  con- 
sulting the  Senate.  The  constitutionality  of  the  Tenure  of 
Office  Act  was  doubtful,  for  if  Congress  cannot  deprive  the 
President  of  a  right  expressly  granted  by  the  Constitution, 
how  could  it  do  so  of  a  right  implied  ?  This  act,  however,  was 
repealed  in  1887,  so  that  the  right  of  the  President  to  remove 
a  Federal  officer  is  the  same  to-day  as  in  the  day  of  Wash- 
ington.'^ 

This  is  a  vast  power  for  one  man  to  have ;  but  like  the  power 
to  pardon  it  is  not  likely  to  be  exercised  without  reasonable 
cause.  A  nation  must  have  an  executive,  and  that  executive 
must,  if  he  is  to  be  anything  but  a  puppet,  have  sweeping 
powers.  There  is  little  danger  that  any  President  will  ever 
become  a  Ca?sar.  The  checks  in  the  Constitution  itself,  backed 
by  an  intelligent  people,  are  ample  protection.  Furthermore, 
in  the  language  of  Mr.  Madison :  "  The  wanton  removal  of 
meritorious  officers  would  subject  him  (the  President)  to  im- 
peachment and  removal  from  his  own  high  trust." 

Section  2,  Clause  3. — The  President  shall  have  power  to 
fill  up  all  vacancies  that  may  happen  during  the  recess  of 
the  Senate,  by  granting  commissions  which  shall  expire  at 
the  end  of  their  next  session. 

^The  judges  of  the  courts  of  the  United  States  are  protected 
from  sudden  removal  by  Art.  3,  Sec.  1  of  the  Constitution.  Mili- 
tary and  naval  officers  are  protected  by  the  Act  of  1866,  which 
provided  for  their  removal  only  after  conviction  by  court-martial. 


The  Executtvf:  Power  191 

/^ 

Vacancies  in  Office. — Yaoanry  in  this  clause  peems  to  mean 
a  state  of  iiioceupaiiey  after  the  office  has  once  been  filled  by 
lawful  appointment.  TTcnce,  an  office  created  by  Congress, 
but  remaining  unfilled  at  the  end  of  the  session,  does  not  make 
a  vacancy  during  the  recess  of  the  Senate  which  the  President 
should  fill.  This,  at  least,  is  the  opinion  of  most  law  writers; 
but  the  President,  in  his  executive  position,  may  take  the  other 
view  and  act  accordingly.'*  Vacancies  may  happen  from  many 
causes,  such  as  death,  resignation,  removal,  and  the  accepting 
of  incompatible  offices."  Whatever  the  cause  may  be,  it  is 
expedient  that  the  vacancy  be  filled  immediately,  if  the  work 
of  the  government  in  that  department  is  to  go  on.  The  Chief 
Executive  is  therefore  given  power  to  act  at  once  and  alone  on 
these  cases.  But  to  guard  against  the  possibility  of  the  Presi- 
dent's creating  vacancies  by  arbitrary  removal  and  filling  them 
with  favorites  while  the  Senate  is  not  convened,  the  commis- 
Bion  herein  authorized  to  be  granted  expires  at  the  end  of  the 
next  session  of  Congress.  If,  meanwhile,  the  President  nomi- 
nates the  same  person  to  the  office,  and  the  Senate  when  con- 
vened confirms  the  nomination,  a  new  conmiission  is  made  out, 
and  the  incumbent  remains  in  office. 

State  Offices. — These  are  filled  according  to  the  dictates  of 
State  constitutions  or  State  legislatures.  As  in  so  many 
other  political  matters,  there  is  no  uniformity  among  the 
States. 

Section  3.— He  shall,  from  time  to  time,  give  to  the 
Congress  information  of  the  state  of  the  Union,  and 
recommend  to  their  consideration  such  measures  as  he 

*■  President  Washington  adopted  this  other  view  in  October, 
1786,  when  he  appointed  Rufus  Putnam  to  the  office  of  Surveyor 
General.  The  office  was  created  in  IMay  of  that  year,  but  remained 
unfilled  at  the  end  of  that  session. 

"Failure  of  the  Senate  to  reject  or  confirm  a  nomination  before 
adjournment  creates  a  vacancy  which  the  President  may  fill. 


192  Constitutional  Law 

shall  judge  necessary  and  expedient;  he  may,  on  extraor- 
dinary occasions,  convene  both  Houses,  or  either  of 
them,  and  in  case  of  disagreement  between  tliem  with 
respect  to  the  time  of  adjournment,  he  may  adjourn  them 
to  such  time  as  he  shall  think  proper;  he  shall  receive  am- 
bassadors and  other  public  ministers;  he  shall  take  care 
that  the  laws  be  faithfully  executed,  and  shall  commission 
all  the  officers  of  the  United  States. 

Special  Sessions;  Adjournment. — Article  1,  Section  4, 
Clause  2  of  the  Constitution  provides  for  the  regular  meetings 
of  Congress.  But  under  the  authority  of  the  present  clause 
the  President  may  at  any  time,  if  necessity  demands,  convene 
either  House  of  Congress,  or  both  of  them,  in  extra  session; 
and  in  case  of  disagreement  between  them  on  the  question  of 
adjournment  he  may  adjourn  them  to  siieh  time  as  he  alone 
deems  fit.  These  are  great  powers,  but  necessary.  Normally 
Congress  is  not  in  session  for  from  six  to  nine  months  of  the 
year;  during  which  time  many  things  may  happen,  such  as 
financial  crises,  insurrection,  or  invasion,  demanding  the 
attention  of  the  Federal  legislature.  It  is  well  therefore  that 
the  Executive  should  be  able  to  summon  that  body  to  his 
assistance.  Since  the  adoption  of  the  Constitution  many 
special  sessions  have  been  called.  The  Senate  has  been  con- 
vened frequently  to  act  on  treaties  and  nominations  to  office, 
but  the  House  has  never  been  convened  alone.  The  power  to 
dismiss  Congress  has  never  been  used  by  any  President,  a  fact 
that  speaks  well  for  the  sanity  of  Federal  legislatures.  It  is 
wise  that  the  power  should  exist,  however,  in  order  to  put  a 
stop  to  unseemly  wrangling  over  a  matter  of  only  minor  im- 
portance. In  England,  the  king  may  dissolve  Parliament 
at  will,  as  he  may  call  extra  sessions  at  will. 

The  President's  Message. — Legislation  originates  in  Con- 
gress, but  the  President  may  advise  and  recommend;  and 
from  his  official  position  as  Chief  Executive  his  advice  and 
recommendations  are  often  of  value.    The  Executive  Depart- 


Thk  Executive  Power  193 

ment  has  better  means  for  getting  information  of  the  state 
of  the  Union  than  has  Congress.  Such  matters  as  foreign 
relations,  revenue  and  expense,  the  condition  of  tlie  army  and 
the  navy,  postal  needs  and  many  others  are  directly  under  its 
cognizance;  and  it  is  vital  that  the  Chief  Executive  should, 
from  time  to  time,  impart  such  intimate  knowledge  to  the  law- 
making body,  as  he  in  his  official  position  may  acquire. 

The  Constitution  docs  not  say  how  or  w^hcn  this  information 
shall  be  communicated  to  Congress,  but  it  has  become  cus- 
tomary for  tlie  President  to  present  it  at  the  opening  of  each 
session  in  the  form  of  a  written  message.  Presidents  Wash- 
ington and  John  Adams  read  their  messages  in  person  in 
the  two  Houses  in  joint  assembly;  Jefferson  instituted  the 
custom,  which  has  been  followed  by  all  Presidents  since,"  of 
sending  his  message  to  each  House  to  be  read  by  the  clerk. 
No  answer  is  given,  and  none  expected.  To  these  documents 
the  members  of  Congress  usually  give  respectful  attention,  but 
it  is  reasonable  to  suppose  that  they  do  not  hold  them  all  in 
quite  the  same  awe,  as  the  ancient  Greeks  held  the  utterances 
of  the  oracle  at  Delphi.  Presidents  are  but  men,  their  wisdom 
is  limited,  and  their  recommendations  are  not  always  followed 
to  the  letter.  The  President  holds  no  whip  over  Congress,  a 
fact  which  that  body  is  well  aware  of.  Indeed,  whenever  it 
happens  that  the  President  and  the  majority  in  either  House 
of  Congress  are  of  opposite  political  faiths,  or  when  for  any 
reason  lack  of  harmony  prevails  between  the  Executive  and 
the  Legislative  Departments,  measures  that  the  President 
recommends  are  likely  to  make  slow  progress. 

Not  all  the  Executive's  messages  are  presented  at  the  open- 
ing of  a  session  of  Congress.  The  President  may  at  any  time 
transmit  information  to  that  body,  or  recommend  special 
measures,  and  either  House  of  Congress  may  at  any  time 

"  President  Wilson,  in  1913,  revived  the  old  custom  by  delivering 
his  message  to  Congress  in  person. 
13 


19-i  Constitutional  Law 

request  such  information  as  may  seem  desirable,  even  on 
matters  over  which  it  has  no  direct  legislative  power.  On  the 
other  hand  the  President  may  decline  to  communicate  facts, 
if  in  his  judgment  the  public  welfare  demands  their  secrecy. 
These  irregular  executive  documents'  are  termed  "  special 
messages." 

Ambassadors  and  other  Public  Ministers. — ^These  are 
diplomatic  agents,  representing  the  sovereignty  of  the  nations 
which  accredit  them.  To  receive  such  a  political  representa- 
tive is  to  recognize  the  nation  from  which  he  comes  as  a 
sovereign  State.  The  language  of  this  clause  is  imperative: 
"  He  shall  receive."  This  does  not  mean,  however,  that  any 
and  every  foreign  diplomatic  agent  must  be  accepted;  but  only 
such  as  are  agreeable  to  the  United  States  are  to  be  formally 
received  by  the  President.  States,  Congress,  and  courts  of  law 
have  nothing  to  do  with  foreign  relations;  these  are  carried 
on  entirely  by  the  President  and  the  Department  of  State. 
The  President  alone  is  judge  of  the  sovereignty  of  the  foreign 
State,  and  of  the  fitness  of  its  representatives.  It  follows 
therefore  that  the  power  to  receive  carries  with  it  the  power 
to  refuse  to  receive,  and  to  demand  the  recall  of  an  accepted 
agent — either  on  the  ground  that  he  is  personally  undesirable, 
or  that  the  relations  between  the  two  governments  have  be- 
come too  far  strained  to  admit  of  his  further  continuance  in 
office."  All  this  is  delicate  business.  To  refuse  to  receive  a 
foreign  diplomatic  agent,  or  to  demand  his  recall,  may  be 
looked  upon  by  the  other  nation  concerned  as  a  very  unfriendly 
act.  Hence  it  is  highly  essential  that  the  person  to  whom  is 
intrusted  this  delicate  power  should  be  one  of  tact  and  sound 
judgment. 

^Mr.  Genet,  French  minister,  was  recalled  on  demand  In  1793; 
Mr.  Jackson,  British  minister,  1809;  Mr.  Poussin,  French,  in  1849; 
Sir  John  Crampton,  British,  1856;  Mr.  Catacazy,  Russian,  1872; 
Lord  Sackville,  British,  1888. 


The  Executive  Power  ins 

Until  1893  no  ministers  from  the  United  States  were  styled 
Ambassadors.  In  that  year  Congress  authorized  the  President 
to  confer  the  title  on  the  ministers  to  all  foreign  governments 
that  sent  agents  of  such  rank  to  the  United  States.  Ambassa- 
dors are  now  sent  to  the  following  countries :  Great  Britain, 
France,  Germany,  Eussia,  Italy,  Japan,  Mexico,  Austria- 
Hungary,  Brazil,  Turkey,  Spain,  Argentina,  and  Chili. 

The  duty  of  an  Ambassador,  and  of  any  other  foreign 
minister,  is  in  general  to  foster  pleasant  relations  with  the 
government  to  which  he  is  accredited.  He  is  his  nation's 
mouthpiece.  "Whatever  he  may  say  in  public  of  a  political 
nature  is  supposed  to  reflect  the  sentiments  of  his  home  govern- 
ment. All  intercourse  between  the  foreign  nation  and  his  own 
is  carried  on  through  him.  His  position  therefore  requires  a 
distinct  gift  for  diplomacy. 

Other  Public  Ministers. — These  are  in  order  of  rank: 
Envoys  Extraordinary,  Ministers  Plenipotentiary,  Ministers 
Eesident,  and  Charge  d'Affaires.  Like  Ambassadors,  these  are 
purely  political  agents.  The  difference  between  them  is  not 
easy  to  determine,  for  their  duties  are  the  same.  Their  relative 
ranks  depend  on  the  importance  of  the  country  to  which  they 
are  sent.  Ministers  Eesident  from  the  United  States  are  few 
in  number.  The  title  is  often  merged  in  that  of  Consul- 
General.    Charge  d'Affaires  are  not  often  sent  out. 

Consuls. — These  are  commercial,  rather  than  diplomatic, 
agents.  Their  purpose  is  to  further  the  business  interests  of 
their  respective  countries.  Their  duties  are  rather  various. 
They  hold  the  required  papers  of  all  American  vessels  while 
in  their  ports;  they  hear  complaints  of  seamen;  they  reclaim 
deserters;  they  appoint  examiners  for  vessels  reported  unsea- 
worthy,  they  cause  mutinous  sailors  to  be  arrested  and  sent 
home  for  trial ;  they  take  possession  of  the  personal  property 
of  American  citizens  dying  abroad ;  they  take  measures  to  save 
stranded  vessels  and  their  cargoes;  they  report  the  condition 


196  Constitutional  Laav 

of  business  in  their  respective  localities ;  and  they  are  ex  officio 
notaries  for  all  the  States  of  the  United  States.  Consular 
reports  are  published  frequently,  and  they  often  are  of  great 
service  to  American  business  men  engaged  in  foreign  trade. 

The  Constitution  is  silent  respecting  the  reception  of  con- 
suls. The  term  "  public  ministers  "  docs  not  embrace  them. 
The  power  of  the  President  to  receive  them  may,  however,  be 
fairly  implied  by  the  Constitution.  In  fact  foreign  consuls 
always  receive  their  exequatur  from  the  President  through 
the  State  Department.  The  consular  corps  is  far  larger  than 
the  diplomatic  corps.  In  1911  there  were  over  1100  consular 
representatives  abroad.  Formerly  these  agents  were  paid  by 
fees,  but  since  1906  all  have  been  paid  regular  salaries.  Fees 
which  they  may  collect  are  accounted  for  to  the  United  States 
government. 

Exterritoriality  of  Public  Ministers. — By  a  political  fiction, 
public  ministers  are  not  subject  to  the  jurisdiction  of  the 
countries  to  which  they  are  accredited,  Init  to  the  home 
country.  That  is,  they  carry  with  them  into  the  foreign  land 
the  rights  and  privileges  accorded  them  by  their  own  sovereign, 
and  are  amenable  only  to  his  laws.  Consuls,  not  being  public 
ministers,  do  not  usually  enjoy  these  exterritorial  privileges, 
but  are  answerable  to  the  laws  of  the  country  in  which  they  may 
be  serving. 

Execution  of  the  Laws. — To  execute  the  law  is  to  enforce  it. 
The  laws  of  the  United  States  wliich  tlic  President  is  required 
to  enforce  comprise  the  Constitution  itself,  the  treaties  with 
foreign  nations,  and  the  statutes  yearly  enacted  by  Congress. 
For  this  purpose,  he  may  ask  Congress  for  appropriations  that 
are  necessary  under  the  provisions  of  a  statute,  and  as  com- 
mander-in-chief he  may  call  into  action  United  States  troops 
or  ships.  The  duty  is  wholly  on  the  President;  neither  Con- 
gress, nor  the  judiciary,  nor  any  other  department  of  the 
government  may  lawfully  hinder  him  in  enforcing  the  law,  or 


The  Executive  Po"v\*er  197 

take  any  initial  steps  therein.  The  case  of  Miss.  v.  Johnson, 
4  Wall.,  475,  is  illustrative. 

This  was  a  petition  by  Messrs.  Sharkey  and  Walker,  on  be- 
half of  the  State  of  Mississippi,  for  a  perpetual  injunction  to 
restrain  Andrew  Johnson,  President,  from  executing  certain 
acts  of  Congress,  The  petition  asserted  that  the  acts  in  ques- 
tion were  unconstitutional,  and  had  been  vetoed  by  the  Presi- 
dent but  passed  over  his  veto.  The  court  held :  that  the  in- 
junction could  not  be  issued;  that  the  President  was  bound  by 
the  Constitution  to  execute  the  laws,  and  it  made  no  difference 
whether  he  believed  the  laws  to  be  unconstitutional  or  not. 
The  courts  could  not  restrain  him. 

Although  the  President  may  exercise  a  certain  discretion 
respecting  the  manner  or  the  means  of  executing  the  law,  he 
has  no  discretionary  power  over  the  law  itself.  That  is,  he 
may  not  lawfully  refuse  to  execute  it  on  the  ground  that  it  is 
invalid  or  impolitic.  Whatever  Congress  enacts  is  presump- 
tively valid,  and  the  President  must  see  that  it  is  faithfully 
executed,  whether  it  is  passed  in  the  usual  manner,  or  over  his 
veto  by  the  requisite  two-thirds.  It  is  for  the  judiciary  to 
determine,  in  a  case  properly  before  it,  the  validity  or  in- 
validity of  a  statute. 

Commissions. — Appointing  to  office  and  commissioning 
officers  are  not  the  same.  All  Federal  officers  duly  appointed 
are  commissioned  by  the  President,  but  not  all  officers  of  the 
United  States  are  appointed  by  him,  as  has  been  pointed  out 
in  a  previous  paragraph.  A  commission  is,  in  the  sense  under- 
stood liero,  a  document  issued  by  the  President,  signed  by 
him  and  bearing  the  seal  of  the  United  States,  authorizing  the 
person  nanu'd  therein  to  hold  a  Federal  office,  and  to  enjoy  all 
its  rights  and  j^rivileges.  The  connnission  is  not  the  appoint- 
ment; it  is  but  the  evidence  of  it,  and  the  appointee's  right 
to  the  office  does  not  depend  on  the  possession  of  the  commis- 
sion.    As  was  well  said  in  the  case  of  the  United  States  v. 


198  Constitutional  Law 

Le  Baron,  19  Howard,  74,  "The  transmission  of  the  com- 
mission to  the  officer  is  not  necessary  to  his  investiture  of  the 
office." 

Officers  of  the  United  States. — From  this  phrase  it  is  reason- 
able to  infer  that  those  only  are  officers  of  the  United  States 
who  receive  their  commissions  from  the  President, 

Section  4. — The  President,  Vice  President,  and  all  civil 
officers  of  the  United  States,  shall  be  removed  from  office 
on  impeachment  for,  and  conviction  of,  treason,  bribery, 
or  other  high  crimes  and  misdemeanors. 

Who  May  be  Impeached. — It  is  a  logical  inference  from 
this  clause  that  the  President,  Vice  President,  and  all  civil 
officers  of  the  United  States  may  be  impeached.  The  term 
civil  officers  is  not  defined  in  the  Constitution.  It  is  used, 
apparently,  in  contradistinction  to  military  and  naval  officers, 
who  may  be  court-martialed,  but  not  impeached.  It  may  be 
said  to  include  all  other  officers  of  the  United  States  who 
derive  their  appointments  from  the  national  government, 
rather  than  from  the  State  governments,  or  from  the  people. 
Senators  and  Representatives  cannot  be  impeached."  They 
are  not  "  civil  officers  of  the  United  States,"  for  they  derive 
their  appointments  from  the  States,  or  from  the  people.  On 
the  other  hand,  cabinet  members,  Federal  judges,  public 
ministers  and  consuls  are  such  civil  officers  as  may  be  im- 
peached, for  they  derive  their  appointments  from  the  national 
government. 

One   President,  Andrew  Johnson,  has   been   impeached,** 

"  Senator  William  Blount,  of  South  Carolina,  was  impeached 
in  1797.  When  the  Senate  convened  as  a  court,  counsel  for  Blount 
entered  a  plea  to  the  jurisdiction:  to  wit,  that  when  the  offense 
was  committed  Blount  was  not  an  officer  of  the  United  States. 
By  a  vote  of  14  to  11,  the  plea  was  allowed,  and  the  case  dismissed. 

^  18G8.  Acquitted.  See  Blaine's  "  Twenty  Years  in  Congress," 
Vol.  2,  Chap.  14. 


The  Executive  Power  199 

but  no  "Vice  President.  One  cabinet  member,  Secretary 
Belknap,  has  been  impeached.  This  was  in  1876.  The  Sec- 
retary was  acquitted.  Six  judges  have  been  impeaclicd. 
They  are  as  follows:  Judge  Pickering,  1803;  Judge  Chase, 
1804;  Judge  Peck,  1830;  Judge  Humphries,  1862;  Judge 
Swayne,  1905,  and  Eobt.  W.  Archbald,  1912.  Of  these  Judges 
Pickering,  Humphries,  and  Archbald  were  convicted.  "  Judge 
Pickering,  of  the  District  Court  of  New  Hampshire,  lost  his 
reason,  and  to  get  him  off  the  bench  it  was  necessary  to  go 
through  the  form  of  impeachment."  "  Judge  Humphries  was 
convicted  of  "  aiding  the  Rebellion,  ill-treating  loyal  men, 
confiscating  their  property,  etc."  Robert  W.  Archbald,  Asso- 
ciate Judge  of  the  Commerce  Court,  formerly  U.  S.  District 
Judge  for  middle  Pennsylvania,  was  impeached  on  July  11, 
1912,  for  corrupt  collusion  with  certain  coal  mine  owners  and 
railway  officials  while  in  office.  He  was  removed  from  the 
bench  and  disqualified  for  further  holding  any  office  under 
the  government.  The  last  two  have  been  the  only  ones  to 
suffer  the  extreme  punishment  provided  by  the  Constitution 
for  those  convicted  in  impeachment  trials. 

Offenses  Leading  to  Impeachment. — The  Constitution  makes 
a  very  general  enumeration  of  tlie  offenses  for  which  an  officer 
may  be  impeached :  "  treason,  bribery,  and  other  high  crimes 
and  misdemeanors."  Treason  is  the  act  of  levying  war  against 
the  government,  or  adhering  to  its  enemies,  giving  them  aid 
and  comfort.  Bribery  is  the  act  of  receiving  any  undue 
reward  by  a  person  whose  profession  is  the  administration  of 
public  justice,  or  the  act  of  offering  an  undue  reward  to  such 
person,  in  order  to  influence  his  behavior  in  office.  The 
phrase  "  other  high  crimes  and  misdemeanors  "  is  very  gen- 
eral. In  all  probability  it  was  purposely  made  so  in  order  to 
give  Congress  a  wide  latitude  in  the  matter  of  impeachment. 
It  would  be  futile  to  attempt,  within  the  limits  of  the  Consti- 

" Baldwin's  "American  Judiciary,"  323. 


200  Constitutional  Law 

tution,  to  enumerate  all  the  possible  crimes  and  misdemeanors 
for  which  one  might  be  impeached.  It  may  be  regarded  as 
settled  that,  in  addition  to  such  conspicuous  crimes  as  treason 
and  bribery,  at  which  society  revolts,  a  Federal  office  holder 
may  be  impeached  for  innumerable  lesser  acts  which  render 
him  an  undesirable  official. 

The  Punishment. — Since  the  object  of  impeachment  is  not 
so  much  to  punish  the  person  as  to  purify  the  office,  the  penalty 
is  comparatively  light.  Congress  may  neither  fine,  imprison, 
nor  pronounce  sentence  of  death,  all  of  which  the  British 
Parliament,  sitting  in  impeachment,  may  do.  The  Constitu- 
tion limits  Congress  in  its  infliction  of  punishment  to  two 
things,  one  of  which  it  makes  compulsory,  the  other  per- 
missive. Congress  must,  on  conviction,  remove  the  offender 
from  office ;  it  may  further  disqualify  him  to  enjoy  any  other 
office  under  the  United  States.  In  any  case,  the  findings  of 
the  Senate  cannot  be  reviewed  by  any  other  authority,  and  not 
even  the  President  may  pardon  one  whom  the  Senate  has 
convicted." 

»» Const,  2,  2,  1.     Ante,  p.  184. 


CHAPTER  VI 

THE  FEDERAL  JUDICIARY 
Article  3,  Sections  1-3 


THE  FEDERAL  JUDICIARY 

Article  3 

Section  1. — The  judicial  power  of  the  United  States  shall 
be  vested  in  one  Supreme  Court,  and  in  such  inferior 
courts  as  the  Congress  may  from  time  to  time  ordain  and 
establish.  The  judges,  both  of  the  supreme  and  inferior 
courts,  shall  hold  their  offices  during  good  behavior,  and 
shall,  at  stated  times,  receive  for  their  services  a  com- 
pensation which  shall  not  be  diminished  during  their 
continuance  in  office. 

The  Judicial  Power. — The  judicial  power  is  the  right  to 
liear  and  determine  a  controversy  according  to  the  rules  of 
established  law.  The  Constitution  vests  this  power  in  one 
Supreme  Court,  and  in  such  inferior  courts  as  Congress  may 
from  time  to  time  establish.  The  word  court  here  means  a 
tribunal  for  the  administration  of  justice.  It  may  consist  of 
one  judge  or  several.  As  a  judicial  body  it  is  to  be  dis- 
tinguished from  both  counsel  and  jury. 

The  Supreme  Court. — This  is  the  highest  court  in  the  United 
States,  the  court  of  last  resort,  as  the  name  implies.  It  con- 
sists of  nine  members,  one  Chief  Justice  and  eight  Associate 
Justices,  of  whom  six  make  a  quorum.  The  court  holds  one 
annual  term  in  the  city  of  Washington,  D.  C,  commencing 
on  the  second  Monday  in  October,  and  such  special,  or  ad- 
journed, terms  as  tlie  business  before  it  may  require.  This 
subject  is  considered  further  under  Article  3,  Section  2,  Clause 
2,  page  216. 

Inferior  Courts. — The  "  inferior  courts  "  that  Congress  has 
created  are  the  following;  Circuit  Courts,  Circuit  Courts  of 
Appeals,  District  Courts,  the  Court  of  Claims,  the  Commerce 


204  COXSTITUTIONAL   LaW 

Court,  and  Territorial  Courts  (including  those  of  the  Dis- 
trict of  Columbia),  The  Circuit  Courts,  established  in  1789, 
were  abolished  by  act  of  Congress  in  1911;  the  Commerce 
Court,  established  in  1911,  was  abolished  in  1913.  These 
courts  therefore  are  no  longer  in  the  judicial  system  of  the 
United  States.  In  addition  to  these  Congress  has  provided  for 
certain  quasi  courts,  like  the  Interstate  Commerce  Commis- 
sion, and  for  such  occasional  tribunals  as  courts-martial  and 
consular  courts. 

Circuit  Courts  of  Appeals. — For  systematizing  judicial  busi- 
ness Congress  has  divided  the  country  into  nine  circuits,  corre- 
sponding in  number  to  the  justices  of  the  Supreme  Court. 
Each  of  these  circuits  includes  several  States.  For  example, 
the  first  circuit  consists  of  Maine,  New  Hampshire,  Massa- 
chusetts, and  Ehode  Island.  In  each  of  the  nine  circuits  is  one 
Circuit  Court  of  Appeals,  consisting  normally  of  three  circuit 
judges,^  two  of  whom  make  a  quorum.  By  law  the  nine 
judges  of  the  Supreme  Court  are  assigned  to  duty  on  the 
circuits,  one  to  each.  The  allotment  is  made  by  the  Chief 
Justice.  In  addition  to  these,  the  several  District  Judges 
within  a  circuit  are  competent  to  sit  in  the  Circuit  Court  of 
Appeals.  Hence  three  classes  of  judges  may  sit  in  this  court. 
Supreme,  Circuit  and  District  Judges.  But  no  judge,  before 
whom  a  case  has  been  tried  in  the  District  Court,  may  hear 
the  same  case  in  the  Court  of  Appeals.  The  work  of  this  court 
is  to  review  cases  coming  to  it  from  the  District  Court  on 
appeal  or  by  writ  of  error.  Its  decision  is  final  in  some  of 
these  cases;  in  others  it  is  not,  these  being  appealable  to  the 
Supreme  Court. 

District  Courts. — As  Congress  has  divided  the  whole  country 
into  circuits,  so  it  has  divided  the  States  into  districts.  Un- 
like circuits,  judicial  districts  are  entirely  within  State  lines. 
Large  States,  such  as  New  York,  Pennsylvania,  California, 

*  The  number  varies  from  two  to  four. 


The  Federal  Judiciary  205 

Texas,  etc.,  contain  from  two  to  four  districts;  smaller  States, 
but  one.  Usually  one  judge  is  appointed  to  a  district,  but 
where  the  districts  are  large,  there  are  two.  At  present  (1912) 
there  are  77  judicial  districts,  but  84  District  Judges. 

The  jurisdiction  of  the  United  States  District  Courts  is 
very  extensive.  It  includes  practically  all  Federal  cases  except 
a  few  that  by  law  go  at  once  to  the  Supreme  Court.  For  ex- 
ample, offenses  against  the  Federal  government;  prize  cases; 
civil  causes  (a)  arising  under  the  Constitution,  laws  and 
treaties  of  the  United  States,  or  (2)  between  citizens  of  dif- 
ferent States,  or  between  citizens  and  aliens ;  and  cases  arising 
under  the  patent,  copyright,  postal,  immigration,  or  bank- 
ruptcy laws,  or  the  Sherman  Anti-Trust  Act — all  these  are 
triable  before  the  United  States  District  Courts. 

The  Court  of  Claims. — This  court  consists  of  one  Chief  Jus- 
tice and  four  Associate  Justices,  who  hold  one  annual  session, 
beginning  on  the  first  Monday  in  December.  It  was  estab- 
lished in  1855  for  the  purpose  of  deciding  the  legality  of  claims 
against  the  government.  The  United  States  cannot  be  sued 
in  the  ordinary  sense,  but  a  claim,  or  debt,  against  the  gov- 
ernment may  be  laid  before  the  Court  of  Claims  for  adjudica- 
tion. If  the  decision  of  the  court  is  favorable  to  the  claimant, 
it  is  so  reported  to  Congress,  and  a  bill  may  then  be  prepared 
to  give  the  decision  effect.  The  court  is  thus  a  kind  of  stand- 
ing committee  on  claims.  Before  its  establishment  there  was 
no  way  of  collecting  a  debt  against  the  government,  except  by 
engineering  a  bill  through  Congress — a  lengthy,  indeterminate 
proceeding,  in  which  there  was  no  legal  interpretation  of  the 
claim  except  that  given  by  the  members  of  Congress.  Under 
the  present  system  Congress  must  still  be  appealed  to,  it  is 
true,  but  only  when  the  justice  of  the  claim  has  been  judicially 
determined,  when  it  becomes  possible  for  that  body  to  make 
the  necessary  appropriation. 


206  Constitutional  Law 

Territorial  Courts. — Congress  lias  established  supreme  and 
inferior  courts  in  the  Territories,  by  virtue  of  the  general 
power  prescribed  by  Article  4,  Section  3  of  the  Constitution. 
The  judges  in  these  courts'  are  appointed  by  the  President  and 
the  Senate  for  definite  terms,  usually  four  years,  but  may  be 
removed  by  the  President  at  any  time  previous  to  the  expira- 
tion of  their  terms. 

Consular  Courts. — Provision  has  been  made  by  treaties  with 
certain  non-Christian  foreign  countries,  such  as  China,  Siam, 
Japan,  Madagascar,  Egypt,  Persia  and  Turkey,  for  the  estab- 
lishment of  consular  and  ministerial  courts.  In  other  words, 
both  consuls  and  ministers  appointed  to  these  countries  are 
invested  with  power  to  try  cases  of  both  civil  and  criminal 
nature,  to  which  citizens  of  the  United  States  may  be  parties. 
Appeal  is  allowed  from  the  decisions  of  consuls  in  certain 
cases  to  the  accredited  minister,  and  in  more  serious  cases, 
to  the  Circuit  Court  for  the  District  of  California. 

(For  the  Interstate  Commerce  Commission,  see  p.  94.) 

Military  Courts. — These  are  tribunals  for  the  trial  of 
offenses  arising  in  the  military  or  naval  forces.  Their  juris- 
diction is  limited;  their  existence,  temporary.  They  are 
occasional  courts,  coming  into  existence  when  necessity  de- 
mands, and  dissolving  when  their  special  work  is  finished.  In 
the  naval  service  they  are  of  two  kinds,  general  and  summary. 
In  the  army,  besides  the  general  courts,  there  are  regimental 
and  garrison  courts.  General  courts-martial  have  jurisdiction 
over  every  offense  for  the  trial  of  which  a  military  court  may 
be  convened.  When  organized,  these  military  tribunals  con- 
sist of  from  five  to  thirteen  commissioned  officers,  of  whom 
at  least  one-half  must  be  superior  in  rank  to  the  person  to  be 
tried.  In  the  navy  they  may  be  convened  by  the  Pj'esident 
or  the  Secr^etary  of  the  Navy,  or  by  the  commander-in-chief  of 
a  fleet  or  squadron  with  the  express  permission  of  the  Presi- 


The  Federal  Judiciary  207 

dent.'  In  the  army,  they  are  convened  by  any  general  com- 
manding an  army,  or  colonel  commanding  a  department;  or 
in  time  of  war  by  a  brigade  or  division  commander.  The 
presiding  officer  of  a  general  court-martial  is  termed  the 
president ;  the  prosecuting  officer  is  called  the  judge  advocate. 
Conviction  may  be  had  on  a  majority  vote  of  the  court,  except 
where  the  sentence  of  death  is  to  be  imposed,  when  two-thirds 
must  concur.  Summary  courts-martial  are  for  the  trial  of 
petty  offenses  and  persons  of  inferior  ratings.  In  the  navy 
they  consist  of  three  officers,  not  below  the  rank  of  ensign,  and 
a  recorder.  They  may  be  convened  by  the  commander  of  any 
vessel  in  the  naval  service,  or  by  the  commandant  of  any  navy 
yard,  naval  station,  or  marine  barracks. 

The  findings  of  both  general  and  summary  courts-martial 
must  be  reviewed  by  the  convening  authority  before  the 
sentence  of  the  court  can  be  carried  into  effect.  When  the 
findings  of  a  military  court  having  jurisdiction  have  been 
reviewed  and  confirmed,  it  is  not  proper  for  any  other  court, 
military  or  civil,  to  review  the  case.  It  is  always  proper,  how- 
ever, for  a  civil  court  to  inquire  into  the  jurisdiction  of  a  mili- 
tary court.' 

Besides  being  temporary  tribunals,  military  courts  differ 
from  ordinary  courts  in  other  respects.  The  members  are 
usually  not  versed  in  the  law,  and  tlieir  proceedings,  although 
they  must  be  in  conformity  to  the  law,  are  commonly  free 
from  the  technicalities  so  often  seen  in  municipal  trials.  The 
courts  have  neither  judge  nor  jury;  or  better,  perhaps,  the 
members  act  in  both  capacities,  sifting  the  evidence  on  the 
one  hand,  and  weighing  the  facts  on  the  other.  Lastly,  a 
person  to  be  subject  to  trial  by  a  military  court  need  not  be 
first  indicted  by  a  grand  jury,  and  conviction  does  not  depend 
on  the  unanimity  of  the  court. 

*  This  permission  not  necessary  when  the  fleet  is  in  foreign 
waters. 
"  In  re  Grimley,  137  U.  S..  147. 


208  Constitutional  Law 

The  Military  Power  Subordinate. — When  martial  law  is  de- 
clared in  any  district,  all  offenses  calculated  to  impede  the 
operations  of  the  military  authorities  are  triable  before  mili- 
tary commissions.  But  if  conditions  are  reasonably  peaceful, 
and  the  civil  courts  are  in  operation,  military  commissions 
have  no  power  to  try  persons  not  attached  to  the  military  or 
naval  forces.*  The  rule  is  that  the  military  power  is  sub- 
ordinate to  the  civil,  unless  necessity  demands  the  contrary. 

State  Courts. — All  that  has  just  been  said  about  courts 
relates  to  the  Federal  courts,  that  is,  tribunals  established  by 
Congress  under  the  authority  of  the  Constitution.  The  vast 
majority  of  courts  in  the  United  States,  however,  have  very 
little  to  do  with  Congress  or  the  Federal  judicial  system. 
These  are  the  State  courts.  Just  as  the  general  government 
operates  a  judicial  system,  every  State  has  its  system.  Con- 
sequently, there  are  as  many  systems  for  the  administration 
of  justice  in  the  United  States  as  there  are  States,  and  among 
them  are  great  differences  in  title,  jurisdiction,  and  manner 
of  operation.  To  illustrate:  in  Connecticut  is  one  Supreme 
Court,  corresponding  to  the  Supreme  Court  of  the  United 
States;  Superior  Courts,  similar  in  a  general  way  to  the 
Federal  Circuit  Courts  of  Appeals ;  Courts  of  Common  Pleas ; 
Probate  Courts  (tribunals  for  the  settlement  of  wills;  and 
estates)  ;  and  Justice,  or  Police  Courts.  In  Maryland,  on  the 
other  hand,  the  highest  court  is  called  the  Circuit  Court  of 
Appeals.  Below  that  is  the  Circuit  Court,  and  below  that  is 
the  Justice  Court.  Here  the  Probate  Courts  are  termed 
Orphans'  Courts.  There  is  no  Federal  tribunal  for  the  admin- 
istration of  wills  and  estates.  Thus  the  courts  of  these  two 
States,  although  designed  to  attain  the  same  ends,  differ 
greatly  from  each  other  in  name,  and  do  not  altogether  re- 
semble the  courts  in  the  Federal  system.  An  examination  of 
the  courts  of  other  States  would  disclose  still  further  varia- 

*  Ex  parte  Milligan,  4  Wallace,  2. 


The  Federal  Judiciary  209 

tions,  but  enough  has  been  said  to  show  that  the  system  for  the 
interpretation  of  laws  and  the  administration  of  justice  in  the 
United  States  is  very  complex. 

Federal  and  State  Systems  are  in  Harmony. — Notwith- 
standing this  apparent  confusion  of  titles  and  systems,  Federal 
and  State  courts  work  together  smoothly.  Federal  courts  are 
sanctioned  wholly  by  the  Constitution  and  statutes  of  the 
United  States;  State  courts  derive  their  functions  entirely 
from  the  constitutions  and  laws  of  the  respective  States,  or 
from  the  common  law  as  adopted  by  them.  Both  systems 
within  their  respective  spheres  are  supreme."  The  decisions 
of  the  courts  of  one  State  are  given  full  faith  and  credit  in 
the  courts  of  other  States,  and  in  the  courts  of  the  United 
States.  Most  of  the  litigation  arising  in  any  State  is  settled 
by  the  courts  of  that  State,  only  those  cases  being  appealable  to 
the  Federal  courts  that  concern  the  Constitution,  treaties  and 
laws  of  the  United  States. 

Tenure  of  Office;  Salary. — Federal  judges  hold  office  prac- 
tically for  life.'  They  may  resign  at  pleasure,  and  on  reaching 
the  age  of  seventy  years  they  may  retire  from  active  duty; 
but  they  are  excepted  by  the  present  clause  from  the  Presi- 
dent's sweeping  power  of  removal.  The  sole  way  of  removing 
a  Federal  judge  from  office  is  by  the  long  and  tedious  process 
of  impeachment.  ^Much  more  than  a  century  has  now  elapsed 
eince  the  adoption  of  the  Federal  Constitution,  and  although 
several  judges  have  been  impeached,  only  three  have  been  pro- 
nounced guilty  of  the  offense  charged  and  removed  from  office  ' 
— a  fact  that  testifies  as  much  perhaps  to  the  cumbersomeness 
of  that  method  of  removal  as  to  the  rectitude  of  judges.    The 

■Collector  v.  Day,  11  Wallace,  113. 

•Exception:    judges  in  the  Court  of  Claims,  and  in  territorial 
courts  are  appointed  for  limited  periods. 
*  See  p.  199. 

14 


210  Constitutional  Law 

salary  of  Federal  judges  is  determined  by  Congress ;  when  once 
fixed  it  may  not  be  diminished  during  their  respective  terms  of 
office.  These  provisions'  insuring  tenure  of  office  and  con- 
tinuance of  salary  were  intended  to  secure  the  complete  in- 
dependence of  the  Federal  judiciary,  without  which  it  would 
be  difficult  to  insure  the  proper  administration  of  public 
justice. 

In  State  Courts. — There  is  some  variation  among  the  States 
in  respect  to  the  appointment  and  tenure  of  office  of  judges. 
In  some  States  judges  are  appointed  by  the  Governor,  in  others 
they  are  elected  by  the  people ;  in  some  States  they  hold  office 
during  good  behavior,  in  others,  for  limited  periods  only;  in 
others  they  are  subject  to  the  recall. 

Recall  of  Judges. — The  "  recall,"  as  the  term  implies,  is  a 
process  by  which  elective  officers  may  be  ousted  from  their 
positions  by  popular  vote.  On  the  petition  of  a  certain  per- 
centage of  the  voters  in  a  district  the  question  whether  an 
official,  against  whom  some  complaint  has  been  made,  shall  be 
continued  in  office  is  put  to  the  ballot.  Like  the  "  initiative  " 
and  the  "  referendum "  the  "  recall "  is  regarded  by  many 
people  as  a  panacea  for  all  official  malfeasance  and  incompe- 
tence. They  argue  that,  especially  in  a  democratic  country, 
holders  of  public  offices  are  public  servants,  and  as  such  they 
should  be  directly  responsible  to  the  people.  Accordingly,  in 
some  States  the  "  recall "  has  been  adopted  by  constitutional 
amendment  for  administrative  and  executive  officers ;  in  other 
States  it  includes  the  judiciary  as  well.  In  respect  to  Federal 
officers,  the  "  recall "  is  unknown. 

The  chief  objection  to  the  "  recall,"  and  especially  to  the 
*^  recall "  of  judges  is  that  it  tends  to  weaken  the  office  by 
lessening  the  independence  of  the  occupant.  One  who  holds 
a  public  office  of  any  importance  should  be  free  to  act  without 
fear  or  favor;  he  cannot  feel  free  if  liable  at  any  time  to  be 
voted  out  of  office  on  the  petition  of  any  section  of  the  com- 


The  Federal  Judiciary  211 

munity  that  he  may  displease  by  his  act  or  decision.  On  the 
other  hand,  one  wlio  is  secure  for  life  or  for  a  limited  period  in 
a  public  office  is  in  a  position  to  do  more  or  less  mischief.  To 
find  the  best  means  of  limiting  this  power  in  a  public  officer  to 
do  harm,  and  at  the  same  time  to  secure  his  complete  inde- 
pendence, is  a  great  problem  in  practical  politics. 

Officers  of  the  Courts. — The  officers  of  the  Federal  courts 
arc :  attorneys,  marshals,  commissioners,  reporters,  and 
clerks.  In  a  broad  sense,  every  lawyer  practising  before  a 
United  States  court  is  an  officer  of  the  court.  The  Attorney- 
Oeneral,  however,  and  his  immediate  assistants  are  the  only 
attorneys  having  distinct  duties  before  the  court.  This  officer 
is  charged  with  the  duty  of  conducting  all  suits  in  the  Supreme 
Court  to  which  the  United  States  is  a  party.  As  head  of  the 
Department  of  Justice,  he  has  a  seat  in  the  cabinet,  and  is 
required  to  give  legal  advice  to  the  President,  and  to  the  heads 
of  the  other  departments  as  well,  when  requested. 

United  States  marslials  are  executive  officers  appointed  for 
each  judicial  district,  whose  duties  are  to  carry  out  all  man- 
dates of  the  court.  They  correspond  to  the  sheriffs  in  the  State 
courts. 

United  States  commissioners  are  justices  of  limited  juris- 
diction appointed  by  the  District  Courts.  In  a  general  way, 
they  are  like  justices  of  the  peace  in  the  States. 

The  duty  of  a  court  reporter  is  to  keep  a  record  of  the  facts 
in  all  the  cases  adjudicated  by  a  court,  together  with  the 
opinions  of  the  court,  and  cause  the  same  to  be  published. 
The  Supreme  Court  reports  now  fill  many  volumes.  In  the 
early  days,  these  reports  were  named  after  the  reporter  who 
made  them.  Thus  a  reference  to  5  Wheaton.  317,  means  tlie 
5th  volume  of  Wheaton's  Supreme  Court  Eeports,  page  317, 
To-day,  however,  these  reports  are  arranged  in  a  numerical 
series  and  are  called  United  States  Eeports.  A  reference  to 
169  U.  S.,  17,  means  volume  169  of  the  Supreme  Court  Ee- 
ports, page  17. 


212  Constitutional  Law 

Clerks  of  tlie  court  care  for  the  seals  and  records,  sign  and 
seal  all  process,  and  record  the  decrees  of  the  court.  The  word 
process  here  includes  all  those  means  necessary  to  compel  the 
performance  of  the  orders  of  the  court,  such  as  summonses, 
warrants,  and  subpoenas. 

Section  2,  Clause  1. — The  judicial  power  shall  extend  to 
all  cases  in  law  and  equity  arising  under  this  Constitution, 
the  laws  of  the  United  States,  and  treaties  made,  or  which 
shall  be  made,  under  their  authority;  to  all  cases  affecting 
ambassadors,  other  public  ministers  and  consuls;  to  all 
cases  of  admiralty  and  maritime  jurisdiction;  to  contro- 
versies to  which  the  United  States  shall  be  a  party;  to 
controversies  between  two  or  more  States;  between  a 
State  and  citizens  of  another  State;  between  citizens  of 
different  States;  between  citizens  of  the  same  State  claim- 
ing lands  under  grants  of  different  States;  and  between 
a  State,  or  the  citizens  thereof,  and  foreign  States,  citizens, 
or  subjects. 

Admiralty  and  Maritime  Jurisdiction. — The  words  "  admi- 
ralty "  and  "  maritime,"  as  used  in  the  Constitution,  are  not 
synonymous'.  The  difference  is  broadly  this :  Admiralty  juris- 
diction extends  to  cases  that  occur  or  have  their  origin  on  the 
high  seas,  including  navigable  rivers,  lakes  and  ship  canals, 
as  well  as  the  ocean;  a  maritime  cause  is  one  arising  from  a 
maritime  contract,  whether  made  at  sea  or  on  land.  Prize 
oases,  and  all  offenses  committed  at  sea  come  under  the 
admiralty  jurisdiction.  Contracts  to  insure  ships  or  cargoes, 
and  contracts  for  launching  or  for  removing  ballast  are  mari- 
time contracts.  The  court  of  original  admiralty  and  maritime 
jurisdiction  is  the  United  States  District  Court. 

Judicial  Precedents^ — ^When  a  court  has  mice  applied  the 
law  to  a  set  of  facts,  its'  decision  becomes  a  sort  of  judicial 
precedent  for  the  guidance  of  the  same  court,  or  of  other 
courts,  in  the  settlement  of  other  cases.  Judges,  in  their  deter- 
mination of  legal  questions,  give  great  consideration  to  the 
previous  decisions  of  other  courts  bearing  on  the  same  or 


The  Federal  Judiciary  213 

similar  questions ;  and  students  of  law  find  it  quite  as  useful 
to  study  actual  law  cases,  as  to  study  the  principles  of  law  laid 
down  in  text-books.  A  case  that  has  established  some  principle 
of  law  is  called  a  leading  case.  Such  is  the  case  of  Dartmouth 
College  V.  Woodward,  4  Wlieaton,  518,  which  established  the 
principle  that  the  charter  of  a  college  is  such  a  contract  as  the 
State  legislature  cannot  annul  or  impair. 

This  adherence  to  precedent  is  both  good  and  bad.  It  is 
good  in  that  it  helps  to  preserve  a  sort  of  continuity  and 
harmony  among  judicial  decisions,  thus  tending  to  make  the 
law  more  sure  and  stable ;  it  is  bad  in  that  it  fails  to  allow  for 
that  change  in  sentiment  and  belief  which  is  more  or  less 
linked  with  human  evolution. 

Cases  Tinder  the  Constitution,  Laws  and  Treaties.— A  case 
is  said  to  arise  under  the  Constitution,  the  laws  of  the  United 
States,  and  treaties  made,  when  its  correct  decision  depends 
on  the  construction  of  any  clause  in  the  Constitution,  or  law, 
or  treaty  of  the  United  States.  It  is  the  character  of  the  suit 
that  gives  the  court  jurisdiction.  Thus  any  controversy  which 
raises  the  question  of  the  constitutionality  of  a  Federal  law 
or  treaty  may  be  tried  in  a  Federal  court,  regardless  of  the 
amount  involved. 

Other  Cases. — The  other  seven  classes  of  cases,  over  which 
the  national  courts  have  jurisdiction,  are  less  general.  Power 
over  these  is  given  to  the  Federal  judiciar}--,  either  because  they 
involve  foreign  relations,  or  because  the  Federal  government 
is  directly  concerned,  or  because  it  is  desirable  that  they  be 
taken  before  a  common  superior  tribunal,  free  from  pernicious, 
partisan  influence.  Cases  affecting  public  ministers,  and 
admiralty  and  maritime  cases  may  involve  foreign  relations; 
cases  to  which  the  United  States  may  be  a  party  directly 
affect  the  government :  and  cases  between  States,  or  between 
a  State  and  citizens  of  another  State,  or  between  citizens  of 
different  States  or  between  citizens  of  the  same  State  claiming 


214  Constitutional  Law 

lands  under  grants  of  different  States,  all  are  less  liable  to 
partisan  influence  if  tried  before  national  courts  than  if  tried 
before  State  courts.  Again,  the  jurisdiction  is  not  as  a  general 
thing  exclusive.  For  example,  controversies  between  citizens 
of  different  States  may  be  instituted  in  the  State  courts,  and 
they  very  frequently  are.  The  United  States,  as  a  party  to  a 
suit,  may  commence  proceedings  in  a  State  court,  or  in  a 
Federal  court,  as  circumstances  may  require.' 

"  Cases  in  Law  and  Equity." — Courts  are  not  legislative, 
executive,  or  advisory  bodies.  Their  duty  is  solely  to  interpret 
the  law  in  relation  to  facts,  which  when  presented  in  the  form 
of  a  controversy  between  parties  constitute  a  "  case."  It  is 
not  the  province  of  the  judicial  department  of  the  United 
States  to  advise,  or  control  in  any  way,  the  executive  or  the 
legislative  departments,  for  each  in  its  sphere  is  supreme.  No 
court,  furthermore,  will  of  its  own  volition  decide  the  validity 
of  a  law ;  it  does  so  only  when  that  question  is  at  issue  in  a  case 
legally  before  the  court.  Neither  do  courts  decide  concurrent, 
or  contingent  matters,  or  questions  suggested  by  a  case  in 
hand.    They  determine  the  point  at  issue,  and  nothing  more. 

A  case  in  law  is  one  that  must  be  decided  by  strict  legal 
principles ;  a  case  in  equity  is  decided  by  equitable  principles. 
By  the  latter  is  meant  those  broader  principles  of  right  and 
fairness  which  a  petitioner  in  court  may  invoke  to  obtain  sub- 
stantial justice,  in  cases  where  the  strict  rules  of  the  law  do  not 
grant  it.  Both  the  common  law  and  the  statutes  are  limited 
in  their  scope.  Neither  covers  every  conceivable  situation. 
When  a  suitor  therefore  asks  for  relief  which  the  law  cannot 
grant,  a  court  having  equitable  powers  may  give  equitable 
relief.  Injunctions  are  common  equitable  remedies.  To  illus- 
trate :  A  dams  a  stream,  causing  the  back  flow  to  injure  B's 
property.  At  law  the  utmost  relief  that  B  can  obtain  is  money 
damages.    But  this  may  not  be  adequate  compensation.    The 

•Principles  of  Constitutional  Law,  Cooley,  133,  and  cases  cited. 


The  Federal  Judiciary  215 

relief  that  B  seeks  is  the  restoration  of  his  land  to  its  former 
state,  not  money  damages.  In  such  a  case  a  court  of  equity 
might  supplement  the  inadequacy  of  the  law  by  issuing  an 
injunction  compelling  A  to  remove  the  dam,  or  restraining 
him  from  so  building  it  as  to  injure  B's  property.  By  the 
authority  of  the  present  clause  of  the  Constitution  Federal 
courts  administer  both  legal  and  equitable  principles. 

Section  2,  Clause  2. — In  all  cases  affecting  ambassadors, 
other  public  ministers,  and  consuls,  and  those  in  which  a 
State  shall  be  a  party,  the  Supreme  Court  shall  have  origi- 
nal jurisdiction.  In  all  the  other  cases  before  mentioned, 
the  Supreme  Court  shall  have  appellate  jurisdiction  both 
as  to  law  and  fact,  with  such  exceptions  and  under  such 
regulations  as  the  Congress  shall  make. 

Jurisdiction. — In  law  the  term  jurisdiction  is  synonymous 
with  judicial  power,  i.  e.,  the  power  of  a  court  to  try  a  legal 
controversy.  The  word  legal  is  important  here.  It  is  not  the 
business  of  a  court  to  settle  diplomatic,  business,  or  political 
questions.  The  jurisdiction  of  a  court  may  be  either  ex- 
clusive or  concurrent ;  original  or  appellate.  It  is  exclusive  in 
a  case,  if  no  other  court  has  power  to  act;  it  is  concurrent 
where  two  or  more  courts  have  authority  to  try  a  case  at  the 
option  of  the  suitor;  it  is  original  where  the  court  has  power 
to  try  a  cause  in  the  first  instance;  it  is  appellate  where  the 
court  may  review  the  decision  of  another  court.  Judicial 
tribunals  in  the  United  States,  and  likewise  in  the  several 
States,  are  arranged  in  a  sort  of  ascending  series,  so  that  while 
the  lowest  courts  have  usually  only  original  jurisdiction,  the 
intermediate  and  the  highest  courts  have  mainly  appellate 
jurisdiction,  but  are  given  original  jurisdiction  over  some 
cases.  The  United  States  District  Courts,  for  example,  hear 
causes  in  the  first  instance  only ;  the  Circuit  Court  of  Appeals 
has  appellate  power  only;  but  the  Supreme  Court  is  given 
original  power  over  some  cases,  and  appellate  over  others. 
Neither  the  Supreme  Court,  nor  any  other  court  that  has 


21G  Constitutional  Law 

original  and  appellate  jurisdiction,  may  review  its  own  de- 
cisions, although  it  may  re-try  the  same  cause.  To  re-try  a 
cause  is  to  hear  the  facts  a  second  time  as  if  they  were  new; 
to  review  is  to  examine  the  record  of  proceedings  in  the 
original  case. 

The  Original  Jurisdiction  of  the  Supreme  Court. — The  Con- 
stitution gives  the  Supreme  Court  of  the  United  States 
original  jurisdiction  over  two  classes  of  cases:  1st,  those 
affecting  ambassadors,  other  public  ministers  and  consuls; 
2d,  those  in  which  a  State  shall  be  a  party.  It  has  been  decided 
that  Congress  can  neither  enlarge  nor  abridge  this  jurisdic- 
tion." Furthermore,  the  jurisdiction  of  the  Supreme  Court  is 
not  exclusive.  Congress  has  provided  that  in  all  cases'  brought 
hy  ambassadors  or  other  public  ministers,  or  in  which  a  consul 
is  concerned,  other  Federal  courts  may  have  jurisdiction  con- 
currently with  the  Supreme  Court;  and  in  cases  between  a 
State  and  its  citizens,  or  between  a  State  and  citizens'  of 
another  State,  or  aliens,  the  jurisdiction  is  likewise  concur- 
rent; in  other  cases  it  is  exclusive  in  the  Supreme  Court." 

The  Appellate  Jurisdiction. — This  is  much  more  extensive 
than  the  original  jurisdiction.  It  includes  all  the  cases  men- 
tioned in  the  first  clause  of  this'  Article.  The  first  item  in  that 
clause  makes  the  Supreme  Court  the  court  of  last  resort  for 
all  so-called  constitutional  cases.  This  is  a  wide  range.  Any 
ease,  whether  between  high  functionaries  over  extensive 
claims,  or  between  the  humblest  citizens  involving  but  a  trivial 
interest,  if  it  turns  wholly  or  in  part  on  the  application  or 
interpretation  of  the  Constitution,  the  validity  of  an  act  of 
Congress,  or  the  force  and  extent  of  a  treaty,  comes  fairly 
under  the  Constitution,  laws  or  treaties  of  the  United  States, 
and  may  properly  be  appealed  to  the  Supreme  Court.  The 
question  of  appeal  in  these  cases  depends,  not  on  the  bigness  of 

"Marbury  v.  Madison,  1  Cranch,  137. 
^oR.  S.,  687. 


The  Federal  Judiciary  217 

the  claim,  or  the  importance  of  the  parties,  but  on  the  principle 
at  stake.  Both  questions  of  law  and  questions  of  fact  may  he 
carried  to  the  Supreme  Court  for  review,  but  the  majority  of 
the  cases  decided  by  that  court  involve  questions  of  law  only. 
By  such  questions  is  meant:  the  validity  or  meaning  of  a  law 
or  statute,  or  the  rulings  of  the  lower  court  on  matters  of  pro- 
cedure and  evidence.  These  questions  are  always  determined 
by  the  judges  without  a  jury.  Questions  of  fact,  on  the  other 
hand,  are  triable  before  a  jury;  but  jury  trials  in  this  court 
are  rare. 

The  Power  of  Congress  to  Make  Exceptions. — The  matter  of 
appeal  is  wholly  subject  to  the  legislative  power  of  Congress, 
as  shown  by  the  phrase,  "with  such  exceptions  and  under 
such  reservations  as  the  Congress  shall  make."  Under  this 
authority  Congress  has  determined  that  certain  cases  decided 
in  the  State  courts  may  be  appealed  to  the  Supreme  Court — 
as  where  the  highest  State  court  decides  against  the  validity 
of  a  law  or  treaty  of  the  United  States,  or  decides,  on  the  other 
hand,  that  a  State  statute  is  not  repugnant  to  the  United 
States  Constitution.'*  Congress  has  enacted,  furthermore, 
that  some  eases  may  be  decided  finally  by  the  Circuit  Courts  of 
Appeals,  some  by  the  District  Courts,  and  some  by  the  Court 
of  Claims.  To  determine  in  any  case  whether  a  controversy 
should  come  properly  before  a  Federal  court,  or  is  properly 
appealable  to  the  Supreme  Court,  one  must  consult  the 
statutes  enacted  by  Congress. 

Limitations  of  the  Federal  Courts. — The  Federal  courts 
have  no  common  law  jurisdii'tion.  That  is  to  say,  all  their 
powers  are  derived  from  the  Constitution  or  the  Federal 
statutes.  This  is  especially  evident  in  regard  to  crimes. 
There  are  no  common  law  crimes  in  the  United  States,  except 
as  recognized  by  tlic  several  States.  Hence  no  act  is  triable 
as  an  offense  before  a  Federal  tribunal,  unless  Congress  has 

"R.  S.,  709. 


218  Constitutional  Law 

previously  declared  the  act  to  be  an  offense  against  the  United 

States." 

Section  2,  Clause  3. — The  trial  of  all  crimes,  except  in 
cases  of  impeachment,  shall  be  by  jury;  and  such  trial 
shall  be  held  in  the  State  where  the  said  crimes  shall  have 
been  committed;  but  when  not  committed  within  any 
State,  the  trial  shall  be  at  such  place  or  places  as  the 
Congress  may  by  law  have  directed. 

The  Trial  of  Crimes  by  Jury. — The  phrase  "  trial  of  all 
crimes,"  refers  to  offenses  against  the  United  States  only.  Such 
offenses,  as  we  have  said,  must  be  defined  by  the  public  statutes 
before  they  can  be  tried  in  the  Federal  courts,  for  there  are  no 
common  law  offenses  against  the  United  States.  The  jury 
which  the  Constitution  requires  for  the  trial  of  crimes  is  a 
body  of  twelve  impartial  men,  chosen  from  the  district  where 
the  violation  of  law  occurred,  all  of  whom  must  concur  in  the 
guilt  of  the  accused  before  he  can  be  convicted.  It  is  not  im- 
proper for  the  States  to  provide  for  juries  of  a  greater  or  less 
number  than  twelve  for  the  trial  of  State  offenses,  or  to  allow 
conviction  by  the  vote  of  a  majority.  Most  of  the  States,  how- 
ever, still  cling  to  the  old  idea  that  the  trial  jury  should  con- 
sist of  twelve  men,  and  that  conviction  should  be  only  on  a 
unanimous  verdict.    This  trial  body  is  called  the  petit  jury. 

Need  of  Change  in  the  Jury  System. — The  Constitution 
requires  all  crimes  to  be  tried  before  a  jury.  The  requirements 
of  a  jury  to-day,  however,  are  practically  the  same  as  the  re- 
quirements of  centuries  ago,  and  it  is  becoming  more  and  more 
a  question  whether  trial  by  jury  should  not  be  abolished,  or 
drastic  reforms  made  in  the  method  of  procedure.  At  present 
the  system  is  hedged  about  by  straight-laced  demands  and 
restrictions,  and  burdened  by  arbitrary,  antiquated  forms.  So 
many  classes  of  men  are  excused  from  jury  duty  by  law,  and  so 
many  drawn  by  lot  are  excused  by  the  court  for  various 

"  U.  S.  V.  Hudson,  7  Cranch,  32.  U.  S.  v.  Bevans,  3  Wheaton,  336. 
Baldwin's  American  Judiciary,  142. 


The  Federal  Judiciary  219 

reasons,  that  it  is  beooming  more  and  more  difficult  to  impanel 
a  full  jury.  Furthermore,  the  requirement  that  a  juryman 
shall  have  no  previously  formed  opinion  of  the  case  before  the 
court  seems,  in  these  days  of  almost  universal  education  and 
rapid  dissemination  of  knowledge,  almost  an  absurdity.  But 
legal  methods  are  slow  to  change,  and  this  way  of  determining 
justice  will  probably  continue  for  a  good  many  years  to  come. 

Exceptions. — Not  all  cases  at  law,  it  should  be  noticed,  are 
tried  by  jury  in  the  Federal  courts;  but  only  criminal  cases, 
and  those  issues  of  fact  which  the  Constitution  and  the  judi- 
ciary acts  require  to  be  so  tried.  Equity  cases  are  rarely  taken 
before  the  jury,  but  are  determined  by  the  court.  Civil  causes 
in  admiralty  are  likewise  heard  by  the  court  without  a  jury, 
except  in  a  few  special  cases  (R.  S.,  568). 

Place  of  Trial. — The  trial  of  all  crimes  must  be  in  the  State 
where  they  are  committed.  By  this  provision  the  accused  is 
made  to  suffer  as  little  inconvenience  as  possible;  witnesses 
are  more  easily  summoned,  and  information  is  more  readily 
obtained,  than  if  the  trial  should  be  held  in  some  place  remote 
from  the  scene.  Ordinarily  the  trial  takes  place  in  or  near  the 
locality  where  the  crime  was  committed,  but  if  for  any  reason 
the  defendant  cannot  be  assured  of  a  fair  trial  in  that  locality, 
the  case  may  be  taken  to  some  other.  This  is  called  change  of 
jenue.  All  these  things,  as  well  as  the  requirements  regard- 
ing the  number  and  unanimity  of  the  jury,  favor  the  accused. 
Offenses  "  not  committed  in  any  State  "  are  those  committed 
in  the  District  of  Columbia,  in  the  Territories,  on  lands  owned 
by  the  Indians,  in  the  forts  and  arsenals  of  the  United  States, 
and  on  the  high  seas.  Congress  has  provided  for  all  these : 
those  committed  on  the  high  seas  being  triable  in  the  State 
where  the  vessel  first  arrives.  In  the  case  of  an  American 
vessel  outward  bound  to  a  foreign  port,  it  would  be  the  duty  of 
the  American  consul  at  that  port  to  cause  the  offender,  on  the 
arrival  of  the  vessel,  to  be  arrested  and  sent  back  to  the  United 
States  for  trial. 


220  COXSTITUTIOXAL   LaW 

Section '3,  Clause  1. — Treason  against  the  United  States 
shall  consist  only  in  levying  war  against  them,  or  in  ad- 
hering to  their  enemies,  giving  them  aid  and  comfort. 
No  person  shall  be  convicted  of  treason  unless  on  the 
testimony  of  two  witnesses  to  the  same  overt  act,  or  on 
confession  in  open  court. 

Section  3,  Clause  2. — The  Congress  shall  have  power  to 
declare  the  punishment  of  treason,  but  no  attainder  of 
treason  shall  work  corruption  of  blood,  or  forfeiture, 
except  during  the  life  of  the  person  attainted. 

Treason  Limited  to  Definite  Acts;  Constructive  Treason. — 

The  definition  of  treason  in  the  Constitution  serves  two  pur- 
poses :  first,  it  makes  conspicuous  the  acts  which  may  be 
punished  as  treason;  second,  it  absolutely  excludes  all  other 
acts  from  being  considered  treason.  The  latter  purpose  is  the 
greater.  The  substance  of  this  definition  was  taken  directly 
from  the  English  Statute  of  Treasons,  25,  Edward  III.  Before 
the  enactment  of  that  statute  judges  sometimes  determined 
acts  to  be  treasonable  that  were  not  believed  to  be  such  when 
committed.  From  their  decisions  arose  what  was  known  as 
constructive  treason.  Under  the  Constitution  constructive 
treason  is  absolutely  impossible.  The  common  law,  further- 
more, distinguished  between  high  and  petit  treason;  high 
treason  being  practically  what  the  Constitution  defines  as 
treason,  petit  treason  being  the  killing  of  a  husband  by  his 
wife,  or  of  a  master  by  his  servant.  The  old  distinction  be- 
tween high  and  petit  treason,  known  to  the  common  law  and 
still  adliered  to  by  some  nations,  does  not  exist  in  the  United 
States. 

What  is  Treason? — The  Constitution  recognizes  only  two 
classes  of  acts  as  treasonable:  first,  levying  war  against  the 
United  States,  or  any  one  of  them ;  second,  adhering  to  their 
enemies,  giving  them  aid  and  comfort.  To  constitute  the 
offense  of  levying  war  there  must  be  an  actual  breaking  out  of 
hostilities  for  the  purpose  of  subverting  the  government. 


The  Federal  Judiciary  221 

A  conspiracy  to  overthrow  the  government,  although  an  in- 
dictable ofTense,  is  not  in  itself  treason."  Adhering  to  the 
enemies  of  the  United  States,  giving  tlicm  aid  and  comfort,  ip 
a  broad  phrase.  It  embraces  every  act  which  renders  any 
assistance  to  the  enemy,  unless  such  act  is  done  under  com- 
pulsion. Among  these  treasonable  acts  are:  joining  with  the 
enemy  to  give  assistance,  delivering  up  forts,  arsenals,  and 
ships  of  war,  and  supplying  the  enemy  with  money,  supplies 
and  ammunition,  ilere  personal  sympathy  for  the  enemy  is 
not  necessarily  treason.  Only  the  overt  act  is  criminal.  In 
this  connection,  however,  even  acts  that  are  not  intended  as 
treasonable  may  sometimes  be  so  construed,  if  the  effect  of 
them  is  to  render  assistance  to  the  public  enemy.  To  illus- 
trate :  in  the  Civil  War,  when  the  loyal  owners  of  two  steam- 
boats which  had  been  seized  by  the  Confederates  were  offered 
pay  for  them  by  the  Southern  government,  they  were  in- 
formed by  the  Secretary  of  State  that  the  acceptance  of  pay 
would  be  considered  treasonable,  as  showing  adherence  to  the 
enemy.  In  any  event,  it  is  not  necessary  that  material  damage 
be  done,  or  that  the  aid  given  be  of  tangible  assistance  to  the 
enemy.  It  is  enough  if  a  hostile,  overt  act  is  committed. 
Since  treason,  however,  is  really  a  breach  of  allegiance,  it  can 
be  committed  only  by  one  who  owes  allegiance,  that  is,  by  a 
citizen." 

Conviction. — Treason  is  the  most  serious  crime  that  a  man 
can  commit,  for  it  strikes  at  the  foundations  of  the  govern- 
ment. For  this  reason  more  than  ordinary  proof  is  required 
to  establish  guilt.  Mere  circumstantial  evidence  is  not 
enough ;  a  private  confession  amounts  to  nothing.  To  convict 
of  treason,  there  must  be  the  evidence  of  two  witnesses  to  the 
same  overt  act,  or  confession  in  open  court. 

"  Ex  parte  Bellman,  4  Cranch,  75. 

"  U.  S.  V.  Villato,  2  Fiallns,  370.  U.  S.  v.  Wiltberger,  5  ^Vheaton, 
97. 


232  Constitutional  Law 

Punishment  of  Treason ;  Attainder. — Under  the  old  English 
law,  the  punishment  of  treason  was  death  in  some  horrible 
form.  Congress  has  declared  the  punishment  of  treason 
against  the  United  States  to  be  imprisonment,  or  death  by 
hanging.  The  Constitution  has  further  softened  the  old  pun- 
ishment by  declaring  that  "  no  attainder  of  treason  shall 
work  corruption  of  blood,  or  forfeiture,  except  during  the  life 
of  the  person  attainted."  The  word  attainder,  as  used  in  this 
clause,  means  simply  judicial  conviction.  To  work  corruption 
of  blood  is  to  destroy  all  power  of  inheriting  or  transmitting 
property  according  to  the  regular  laws  of  descent.  Under  the 
old  English  law,  not  only  might  a  man  convicted  of  treason 
be  put  to  death,  but  his  property  might  be  confiscated  by  the 
State,  and  all  right  in  his  descendants  to  inherit  property 
either  from  him,  or  through  him,  be  forever  cut  off.  His  blood 
was  said  to  be  corrupted,  and  his  punishment  was  visited  upon 
his  descendants  for  successive  generations.  Corruption  of 
blood  in  this  sense  is  forever  prohibited  by  the  Constitution, 
and  forfeiture  of  property  is  possible  only  to  a  limited  extent. 
The  case  of  Day  v.  Micou,  18  Wall.,  156  (1873),  will  perhaps 
illuminate  this  point. 

In  1858  J.  P.  P.cnjamin  mortgnc'-od  hi>  land  to  Madame 
Micou.  In  1865  Benjamin  was  adjudged  guilty  of  treason 
against  the  United  States,  and  his  property  was  confiscated  by 
the  government  and  sold  to  Madison  Day.  Later,  Madame 
Micou  brought  suit  against  Day  to  recover  the  mortgage  debt. 
Day  resisted  the  suit  on  the  ground  that  forfeiture  and  sale 
of  the  property  by  the  government  had  relieved  it  of  all  en- 
cumbrances. The  court  held  that  punishment  for  treason  can- 
not work  a  forfeiture  of  estate  beyond  the  life  of  the  person 
attainted.  Forfeiture  took  away  merely  l\Tr.  Benjamin's  in- 
terest in  the  property,  which  was  a  life  estate ;  it  could  not 
deprive  anyone  else  of  his  interest.  The  mortgagee's  claim 
was  still  good,  since  it  attached  to  the  property  previous  to 
the  forfeiture. 


The  Federal  Judiciary  223 

Treason  and  Rebellion. — When  entire  communities  levy  war 
against  the  government  they  create  a  state  of  treason  rather 
difficult  of  settlement.  During  the  Civil  War  all  who  were 
in  arms  against  the  government  were  technically  guilty  of 
treason,  but  the  government  chose  rather  to  regard  them  as 
belligerents  than  as  traitors.  Although  Congress  passed  many 
acts  for  the  disposition  of  captured  property,  and  both  legis- 
lative and  judicial  acts  of  the  Confederacy  were  held  to  be 
absolutely  void,"  no  steps  were  taken  at  the  close  of  the  war  to 
punish  the  offenders  according  to  statute.  "  You  cannot  indict 
a  whole  people,''  said  Edmund  Burke ;  and  both  the  President 
and  Congress  saw  the  absurdity  of  trying  to  punish  a  rebellious 
community.  Accordingly,  the  offense  of  having  levied  war 
against  the  government  was  pardoned  by  general  proclama- 
tions of  amnesty,  issued  by  Presidents  Lincoln  and  Johnson. 
Later,  the  14th  Amendment,  Clause  3,  imposed  disabilities  on 
certain  ones  who  had  engaged  in  rebellion,  but  more  for  the 
purpose  of  rewarding  and  insuring  loyalty  than  for  punish- 
ing disobedience.    In  1898  these  disabilities  were  removed. 

Misprision  of  Treason. — Since  Congress  may  declare  the 
punishment  of  treason,  it  also  must  have  the  power  to  declare 
the  punishment  of  lesser  crimes  in  the  nature  of  treason. 
Accordingly,  "  misprision  of  treason,"  or  the  willful  conceal- 
ment of  known  treason  by  one  who  takes  no  part  in  the  same, 
has  been  declared  an  offense  and  made  punishable.  Guilty 
knowledge  here  constitutes  the  wrong.  Congress  has  likewise 
provided  for  the  punishment  of  conspiracy  against  the  govern- 
ment, where  no  overt  act  has  been  committed." 

"Knox  V.  Lee,  12  Wall.  (79  U.  S.),  457.  In  this  case  Lee.  a  loyal 
citizen  wliose  property  liad  been  confiscated  under  Confederate 
statutes,  was  allowed  to  recover  from  Knox,  tlie  purchaser,  on  tlie 
ground  that  the  sale  of  property  under  void  statutes  was  illegal. 

"  R.  S.,  5440. 


CHAPTER  VII 

MISCELLANEOUS 
Article  4,  Sections  1-4 

AMENDING  THE  CONSTITUTION 
Article  5. 

VALIDITY  OF  DEBTS;  FUNDAMENTAL  LAW;  OATH 
OF  OFFICE 

Article  6,  Sections  1-3 

RATIFICATION  OF  THE  CONSTITUTION 
Article  7 


IB 


/ 


MISCELLANEOUS 

Article  4 

Section  1. — Full  faith  and  credit  shall  be  given  in  eacn 
State  to  the  public  acts,  records,  and  judicial  proceedings 
of  every  other  State.  And  the  Congress  may,  by  general 
laws,  prescribe  the  manner  in  which  such  acts,  records, 
and  proceedings  shall  be  proved,  and  the  effect  thereof. 

Faith  and  Credit. — The  full  faith  and  credit  to  which  the 
public  acts,  records,  and  judicial  proceedings  are  entitled  in 
other  States  is  the  same  faith  and  credit  to  which  they  are 
entitled  in  the  State  where  they  ori<zinate.*  But  all  such 
things  are  facts  to  be  proved,  in  case  the  question  of  their 
existence  arises;  for  the  courts  of  one  State  are  not  required  to 
take  judicial  notice  of  the  public  proceedings  in  other  States, 
that  is,  to  accept  them  as  matters  of  common  knowledge. 

Proving  Public  Acts,  etc. ;  Act  of  Congress. — Congress  has 
provided  for  this  in  tlic  following  way :  "  The  acts  of  the 
legislature  of  any  State  or  Territory,  or  of  any  country'  subject 
to  the  jurisdiction  of  the  United  States,  shall  be  authenticated 
by  having  the  seal  of  such  Tcrritor}',  State,  or  country  affixed 
thereto.  The  records,  and  judicial  proceedings  of  the  courts 
of  any  State,  Territory,  or  of  any  such  country,  shall  be  proved, 
or  admitted  in  any  other  court  within  the  L^nitcd  States,  by 
the  attestation  of  the  clerk  and  the  seal  of  the  court  annexed,  if 
there  be  a  seal,  together  with  the  certificate  of  the  judge,  chief 
justice,  or  presiding  magistrate,  that  the  attestation  is  in  due 
form." ' 

"  Public  acts "  are  the  State's  legislative  enactments. 
"  Eecords "  are  the  registration  of  deeds,  wills,  legislative 

'  Mills  r.  Duryca,  7  Cranch,  481. 
'R.  S.,  905. 


228  Constitutional  Law 

journals,   etc.     "  Judicial   proceedings "  are  the  judgments, 
orders,  and  due  procedure  of  organized  courts. 

Section  2,  Clause  1. — The  citizens  of  each  State  shall  be 
entitled  to  all  privileges  and  immunities  of  citizens  in  the 
several  States. 

The  General  Purpose. — The  general  purpose  of  this  amend- 
ment was  to  settle  all  uncertainty  regarding  the  rights  of 
citizens  of  any  State  while  passing  through,  sojourning,  or 
residing  in  any  other  State.  No  state  may  pass  laws  discrimi- 
nating against  citizens  of  other  States.  Conversely,  citizens 
of  one  State  may  not  carry  into  another  State  privileges  that 
are  not  enjoyed  by  citizens  of  the  latter.  To  illustrate :  John 
Doe,  of  New  Hampshire,  on  removing  to  Maine,  may  enjoy  all 
the  privileges  and  immunities  of  the  citizens  of  Maine.  He 
may  claim  police  protection;  he  may  acquire  and  hold  prop- 
erty ;  he  may  institute  suits  in  the  State  courts,  and  in  respect 
to  most  matters  may  act  as  a  citizen  of  Maine.  But  he  may 
not  carry  into  that  State  any  rights  and  privileges  not  allowed 
by  the  laws  of  Maine  to  its  own  citizens.  Thus  he  may  not 
engage  in  a  business  there  which  is  illegal  under  ]\rnine 
statutes,  on  the  ground  that  such  business  is  legal  in  New 
Hampshire. 

Exceptions;  Political  Privileges. — What  has  just  been  said 
is  true  of  citizens  in  respect  to  their  private,  or  business  rela- 
tions. In  respect  to  their  relations  with  the  State  a  different 
rule  may  obtain.  Political  privileges,  such  as  the  right  to  vote, 
to  hold  State  offices,  etc.,  may  certainly  be  reserved  by  the 
State  to  its  own  citizens.  Furthermore,  on  the  ground  of 
public  ownership,  a  State  may  with  reason  limit  certain  other 
privileges,  such  as  shooting  on  public  game  preserves  and 
fishing  in  public  waters,  to  its  own  body  politic. 

Although  corporations  are  often  called  artificial  citizens,  in' 
no  sense  are  they  citizens  in  fact.    Hence,  a  State  is  not  bound] 


MiSCELLAXEOUS  229 

to  acporcl  to  corporations  created  by  other  States  all  the 
privileges  and  immunities  granted  to  its  own  corporations  or 
enjoyed  by  its  private  citizens.'  But  all  restrictions  imposed 
by  a  State  on  corporations  chartered  by  other  States  must  be 
in  conformity  with  the  Constitution  and  laws  of  the  United 
States.  For  example,  a  State  may  forbid  foreign  corporations 
to  acquire  real  property  within  the  State  by  devise,*  that  is  by 
will  or  testament,  but  it  cannot  restrict  the  navigation  of  its 
waters  to  domestic  citizens  or  corporations,  for  that  would  be  a 
regulation  of  interstate  commerce;  nor  may  it  deny  to  foreign 
corporations,  which  it  allows  to  do  business  within  its  borders, 
privileges  and  immunities  which  its  own  citizens  enjoy.  This, 
at  least,  was  the  decision  of  the  Supreme  Court  in  the  case  of 
Blake  v.  McClung,  1T2  U.  S.,  239  (1898),  as  follows: 

A  Tennessee  statute  gave  the  citizens'  of  that  State  priority 
over  citizens  of  other  States  in  the  settlement  of  the  estates  of 
insolvent  foreign  corporations  doing  business  in  Tennessee, 
although  foreign  corporations  were  allowed  to  operate  in 
Tennessee  by  permission  of  the  legislature. 

The  Supreme  Court  held  that  the  State  of  Tennessee  could 
not  deny  to  citizens  of  other  States  whom  it  allowed  to  do 
business  there  privileges  and  immunities  that  its  own  citizens 
enjoyed.  The  terms  privileges  and  immunities,  it  said,  were 
not  easy  to  define,  but  they  must  include  the  right  of  creditors 
to  participate  on  terms  of  equality  in  the  assets  of  a  debtor. 

Section,  2,  Clause  2. — A  person  charged  in  any  State  with 
treason,  felony,  or  other  crime,  who  shall  flee  from  justice, 
and  be  found  In  another  State,  shall,  on  demand  of  the 
executive  authority  of  the  State  from  which  he  fled,  be 
delivered  up,  to  be  removed  to  the  State  having  juris- 
diction of  the  crime. 

•  Paul  V.  Va.,  8  Wallace,  168.     Horn  Silver  Mining  Co.  v.  N.  Y., 
143  U.  S.,  305. 
*U.  S.  V.  Fox,  94  U.  S.,  315. 


230  Constitutional  Law 

Fugitives  From  Justice. — A  fugitive  from  justice  is  a  person 
who,  having  committed  a  crime  in  one  jurisdiction,  flees  to 
another  to  avoid  punishment.  The  matter  of  returning  such 
persons  by  one  nation  to  another  is  regulated  by  treaties.  The 
United  States  government  has  such  treaties  witli  most,  but 
not  all,  foreign  States.  In  the  United  States,  the  matter  is 
provided  for  by  the  present  clause  in  the  Constitution.  With- 
out this  regulation  the  several  States  would  become  asylums 
for  the  fleeing  criminals  of  each  other,  for  the  courts  of  one 
have  no  jurisdiction  in  any  other,  and  the  States  are  forbidden 
by  the  Constitution  to  make  treaties,  or,  without  the  consent 
of  Congress,  to  enter  into  any  compact  or  agreement  with  each 
other.  The  act  of  returning  escaped  criminals,  or  fugitives 
from  justice,  from  one  nation  to  another,  or  from  one  State 
to  another,  is  called  extradition.  The  formal  demand  for  such 
delivery  is  termed  requisition. 

The  Procedure. — The  procedure  in  extradition  was  pre- 
scribed by  Congress  in  1793.  Substantially  it  is  as  follows: 
First,  formal  demand  by  the  executive  of  the  State  from  which 
the  alleged  criminal  has  fled  must  be  made  on  the  executive  of 
the  State  to  Avhich  he  has  fled.  Second,  this  demand  must  be 
accompanied  by  a  copy  of  the  indictment  found  against  him, 
or  by  an  affidavit  made  before  a  magistrate  charging  the 
fugitive  with  the  commission  of  a  crime.  Third,  when  it  has 
been  shown  to  the  satisfaction  of  the  executive  on  whom  the 
demand  is  made  that  a  crime  against  the  demanding  State  has 
been  committed  by  the  person  named  in  the  requisition,  he 
shall  cause  the  latter  to  be  arrested  and  delivered  up  to  officers 
from  the  demanding  State.  The  law  in  these  cases  allows  the 
Governor  little  discretion.  But  the  charge  against  the  person 
must  be  in  the  nature  of  a  crime;  he  cannot  legally  be  ex- 
tradited to  satisfy  a  private  demand.  What  seems  like  an  ex- 
ception to  this  is  in  the  law  providing  for  the  extradition  of 
bankrupts.    Whenever  a  bankrupt  is  suspected  of  an  intention 


Miscellaneous  231 

to  leave  the  district  in  which  the  court  is  sitting  the  court  may 
issue  a  warrant  for  his  detention.  Should  he  then  remove  to 
some  other  district  he  may  he  extradited,  as  in  the  case  of  a 
fugitive  against  whom  an  indictment  is  pending.'  The  phrase, 
"  fugitive  from  justice,"  implies  an  actual  fleeing  from  one 
jurisdiction  to  another.  Accordingly,  if  the  person  in  ques- 
tion has  never  heen  in  the  demanding  State,  he  cannot  be  said 
to  have  fled  from  it,  and  he  is  not  demandable  as  a  fugitive.' 

It  is  not  always  necessary  to  resort  to  these  formal  proceed- 
ings in  order  to  secure  a  fugitive  for  trial.  He  may  be  enticed 
back  into  the  State  from  which  he  has  fled,  or  kidnapped  and 
brouglit  back,  then  arrested,  tried,  and  punished,  and  such 
proceedings  have  been  declared  valid.^  In  any  case,  whether 
returned  by  extradition,  or  by  less  formal  proceedings,  he  may 
be  tried  for  the  alleged  offense,  or  for  any  other  that  he  may 
be  afterwards  charged  with.' 

This  Clause  not  Mandatory. — No  douljt  the  framers  of  tlie 
Constitution  intended  that  this  clause  should  be  mandatory. 
Time  and  the  courts  have  decreed  otherwise.  The  imperative 
shall  has  become  in  practice  the  permissive  may.  That  is,  the 
Governor  of  the  State  on  whom  the  demand  is  made,  although 
morally  bound  in  a  proper  case  to  deliver  up  the  alleged 
criminal,  cannot  be  compelled  to  do  so,*  for  Congress  has  as 
yet  made  no  provision  to  coerce  an  obstinate  State  executive. 
Furthermore,  in  case  the  fugitive  is  arrested  in  the  State  to 
Avhich  he  has  fled,  it  is  always  proper  for  the  courts  of  that 
State    to    inquire    by    habeas    corpus    proceedings    into    the 

'  Statutes  at  Large,  30,  549. 
•Ex  parte  Smitli,  3  McLean,  133. 

'  Ker.  V.  111.,  119  U.  S.,  456.    Mahou  v.  Justice,  127  U.  S.,  700.    Cook 
V.  Hart.  146  U.  S.,  1S3. 
*  Lascelles  v.  Georgia,  148  U.  S.,  537. 
•Kentucky  v.  Deuuison,  24  Howard,  66. 


232  Constitutional  Law 

sufficiency  of  the  charge  against  him '";  and  unless  the  requisi- 
tion papers  are  complete,  and  show  at  least  a  prima  facie  case 
against  the  accused,  he  may  be  released. 

Section  2,  Clause  3. — No  person  held  to  service  or  labor 
in  one  State,  under  the  laws  thereof,  escaping  into  another, 
shall,  In  consequence  of  any  law  or  regulation  therein,  be 
discharged  from  such  service  or  labor,  but  shall  be  de- 
livered up  on  claim  of  the  party  to  whom  such  service  or 
labor  may  be  due. 

Fugitives  from  Labor. — This  clause  is  mainly  of  historic 
interest  to-day.  It  was  doubtless  intended  to  apply  both  to 
slaves  and  to  apprentices;  but  as  the  13th  Amendment  has 
forever  abolished  slavery,  and  as  the  custom  of  apprenticing 
is  falling  into  disuse,  the  clause  is  practically  a  dead  letter. 

Section  3,  Clause  1. — New  States  may  be  admitted  by  the 
Congress  into  this  Union;  but  no  new  State  shall  be 
formed  or  erected  within  the  jurisdiction  of  any  other 
State;  nor  any  State  be  formed  by  the  junction  of  two  or 
more  States,  or  parts  of  States,  without  the  consent  of  the 
legislatures  of  the  States  concerned  as  well  as  of  the 
Congress. 

Western  Claims. — At  the  conclusion  of  the  Revolutionary 
War  a  vast  unorganized  territory  lay  west  of  the  thirteen 
States.  Some  of  this  land  was  claimed  by  the  various  States ; 
the  rest  was  owned  by  other  nations.  In  1780  Congress 
pressed  on  those  States  that  had  claims  to  western  land  the 
advisability  of  giving  up  their  conflicting  holdings  for  tlie 
common  good.  This  they  did  one  by  one,  until  at  the  time  of 
the  adoption  of  the  Constitution  only  two  States,  South  Caro- 
lina and  Georgia,"  retained  their  western  claims ;  all  the  rest 

"  Roberts  v.  Reilly,  116  U.  S.,  80.   Ex  parte  Reggel,  114  U.  S.,  642. 
"  By  1802  Georgia  and  South  Carolina  had  relinquished  their 
claims. 


MiSCELLAXEOUS  233 

of  the  land  west  of  the  original  colonies,  not  owned  by  other 
nations,  iiad  come  into  the  possession  of  the  United  States. 
Gradually  Congress  acquired  possession  of  the  western  conti- 
nental territory  held  by  other  nations;  but  before  this  was  com- 
pleted the  work  of  dividing  western  lands  into  States  and 
Territories  had  begun. 

Status  of  New  Territory. — Although  Section  3,  Article  4, 
had  immediate  reference  to  the  western  claims  of  the  original 
States,  the  language  is  broad  enough  to  cover  whatever  land 
the  United  States  might  acquire,  and  by  whatever  means. 
The  Constitution  does  not  expressly  empower  Congress  to  add 
to  the  national  domain  by  purchase,  conquest,  treaty,  or  by 
any  other  mode;  but  the  United  States  has  repeatedly  exer- 
cised the  power  as  appertaining  to  national  sovereignty. 
Normally,  land  acquired  by  the  government  to  be  added  to 
the  national  domain  passes  through  two  stages  before  reach- 
ing the  dignity  of  statehood.  First,  whether  it  be  barbarous 
land,  or  land  with  a  de  facto  government,  it  is  a  dependency, 
a  mere  possession,  and  ruled  entirely  by  the  general  govern- 
ment; secondly,  it  becomes  a  territory  with  a  greater  or  less 
degree  of  organization,  and  with  a  limited  self-government. 
From  this  status  it  may  develop  into  a  State  with  self-govern- 
ment and  a  highly  developed  political  organization." 

The  fact  that  a  dependency,  or  Territory,  is  contiguous  to 
the  established  Union  does  not  make  its  statehood  any  more 
certain,  nor  the  fact  that  it  lies  remote,  forever  keep  it  from 
that  desirable  status.  Whether  a  Territory  shall  become  a 
State  rests  entirely  on  the  will  of  Congress. 

How  States  are  Admitted. — The  mode  of  admitting  new 
States  into  the  Union  has  not  been  entirely  uniform.  It  is 
usually  done  as  follows :  When  a  Territory  has  sufficient  popu- 
lation it  draws  up  and  sends  to  Congress  a  memorial,  or  peti- 
tion, asking  for  permission  to  form  a  State  constitution,  and 

"Texas,  the  single  exception,  was  admitted  a  full-fledged  State. 


234  Constitutional  Law 

to  be  admitted  to  the  Union.  Congress  then  passes  an  "  en- 
abling act,"  authorizing  the  inhabitants  of  the  Territory  to 
form  a  constitution.  When  this  is  done  the  document  is  sent 
to  Congress  for  approval.  If  the  proceedings  have  been  regu- 
lar, and  the  constitution  is  free  from  objections.  Congress 
passes  an  act,  commonly  a  joint  resolution,  admitting  the  new 
State  into  the  Union,  "  on  an  equal  footing  with  the  original 
States  in  all  respects  whatsoever."  The  example  of  Louisiana 
is  typical.  In  1804  the  great  region  purchased  from  France, 
under  the  name  of  Louisiana,  was  divided  by  Congress  into 
the  district  of  Louisiana  and  the  district  of  Orleans.  In  1811 
Congress  passed  an  act  "  to  enable  the  people  of  Orleans  to 
form  a  State  constitution  and  State  government."  In  1813 
an  act  was  passed  "  for  the  admission  of  the  State  of  Louisiana 
into  the  Union,  and  to  extend  the  laws  of  the  United  States 
to  the  said  State." 

Exceptions. — The  power  of  Congress  to  make  new  States 
has  two  limitations.  It  may  not  divide  a  State,  or  amalgamate 
two  or  more,  without  the  consent  of  the  legislatures  of  the 
States  concerned.  But  such  consent  may  be  implied  by  sub- 
sequent acts  as  well  as  expressly  given." 

Section  3,  Clause  2. — The  Congress  shall  have  power  to 
dispose  of  and  make  all  needful  rules  and  regulations 
respecting  the  territory  or  other  property  belonging  to 
the  United  States;  and  nothing  in  this  Constitution  shall 
be  so  construed  as  to  prejudice  any  claims  of  the  United 
States,  or  of  any  particular  State. 

General  Provisions. — Territories  are  portions  of  the 
national  domain  having  a  more  or  less  developed  political 
organization  for  purposes  of  government.  The  land  is  owned 
by  the  Federal  government;  the  political  rights  of  the  people 
depend  on  the  will  of  Congress.    The  executive  and  the  judicial 

"  Virginia  v.  West  Virginia,  11  Wallace,  39. 


MiSCELLAXEOCS  235 

ofTicers  are  appointed  by  the  President  and  the  Senate  for 
limited  terms,  and  are  subject  to  removal  by  the  President  at 
any  time.  The  provisions  of  the  Constitution  defining  the 
limits  of  judicial  power  have  no  application  to  the  Territories. 
Congress  may  make  the  jurisdiction  of  territorial  courts  what 
it  pleases,  or  abolish  them  altogether.  The  legislature  of  a 
Territory  is  usually  elected  by  the  people ;  but  its  enactments 
are  subject  to  the  supervision  of  Congress,  and  the  latter  may 
make  void  any  or  all  of  them."  Territories  levy  their  own 
taxes  for  local  purposes.  They  may  be  taxed  for  national  pur- 
poses, but  only  under  the  same  rules  and  for  the  same  purposes 
as  are  the  States. 

The  territorial  condition  is  generally  regarded  as  temporary 
and  preparatory.  The  inhabitants,  as  soon  as  they  are  suffi- 
cient in  numbers,  and  local  conditions  are  suitable,  may,  at 
the  discretion  of  Congress,  establish  State  institutions  for 
themselves.  It  has  not  been  the  policy  of  the  United  States  to 
keep  any  people,  or  section  of  country,  in  a  position  of  de- 
pendence longer  than  conditions  make  necessary.  At  present, 
1913,  the  Territories  of  the  United  States  consist  of  Alaska, 
Hawaii,  Porto  Eico,  the  Philippine  Islands,  and  the  small 
islands  of  Guam  and  Tutuila.  As  these  differ  politically  in 
some  particulars,  it  may  be  well  to  point  out  what  those  par- 
ticulars are. 

Alaska. — Alaska  was  purchased  from  Pussia  in  1867.  It  is 
not  yet  a  fully  organized  Territory.  Although  it  has  a  Gov- 
ernor, courts,  attorneys,  marshals,  and  commissioners,  it  has 
5S  legislature.  For  many  years  the  laws  of  Oregon  were,  so 
far  as  applicable,  extended  over  Alaska ;  but  in  1898  and  1900, 
respectively,  special  criminal  and  civil  codes  were  enacted  by 
Congress  for  its  government,  .\laska  is  represented  in  Con- 
gress by  one  delegate,  who  may  participate  in  the  discussions 
of  the  House  and  serve  on  committees,  but  who  has  no  vote. 

"  Mormon  Church  v.  United  States,  136  U.  S.,  1. 


236  Constitutional  Law 

Hawaii. — The  Hawaiian  Islands  were  annexed  to  the 
United  States  in  1898  by  the  terms  of  a  joint  resolution  of 
Congress.  Previously  they  had  been  at  various  times  a  king- 
dom under  native  rulers,  a  United  States  protectorate,  and  a 
republic.  Since  1900  Hawaii  has  been  an  organized  Terri- 
tory. It  has  a  Governor  appointed  by  the  President,  a  dele- 
gate in  Congress,  elected  by  the  people,  and  a  legislature  con- 
sisting of  a  Senate  and  a  House  of  Eepresentatives.  The 
judiciary  consists  of  a  Supreme  Court,  a  Circuit  Court,  and 
such  inferior  courts  as  the  legislature  may  establish.  The 
judges  are  appointed  by  the  President  and  the  Senate. 

Porto  Rico. — This  island  came  into  the  possession  of  the 
United  States  in  1898,  as  a  result  of  the  war  with  Spain. 
From  then  until  May  1,  1900,  when  Congress  established  a 
civil  government  for  the  island,  it  was  governed  by  the  Presi- 
dent through  the  War  Department.  Porto  Eico  now  has  a 
Governor,  appointed  by  the  President  and  the  Senate.  The 
legislature  consists  of  a  council,  appointed  by  the  President 
and  the  Senate,  and  a  House  of  Delegates  chosen  by  the  people. 
It  has  Supreme  and  District  Courts,  the  judges  of  which  are 
appointed  by  the  President  and  the  Senate.  Instead  of  hav- 
ing a  delegate  in  Congress,  Porto  Eico  maintains  a  resident 
commissioner  "  near  the  Congress,"  who  represents  the  island 
in  all  official  matters. 

The  Philippine  Islands. — These  islands  were  ceded  to  the 
United  States  in  1898,  for  $20,000,000.  For  two  years  there- 
after the  government  was  purely  military,  the  Filipinos  carry- 
ing on  the  same  desultory  warfare  against  the  United  States 
that  they  had  previously  waged  against  Spain.  In  1900  the 
President  appointed  a  commfssion  of  five  men  to  establish  a 
civil  government  for  the  islands ;  in  1902  the  head  of  this  com- 
mission was  made  civil  governor  of  the  Philippines,  with  the 
title  of  Governor-General.  In  1907  provision  was  made  for 
the  election  of  a  native  assembly.    The  commissioners  (now 


Miscellaneous  237 

nine  in  number)  and  the  assembly  together  form  the  legis- 
hiture.  The  judiciary  consists  of  a  Supreme  Court  and  a 
number  of  lesser  courts.  The  judges  are  appointed  by  the 
President  ajid  the  Senate.  The  islands  are  represented  in  the 
United  States  by  two  commissioners. 

The  condition  of  both  Porto  Rico  and  the  Philippines  is  at 
present  unsatisfactory.  Both  are  under  the  absolute  control 
of  Congress;  both  are  regarded  as  domestic  territory;  but  they 
have  not  yet  been  incorporated  as  part  of  the  United  States 
within  the  meaning  of  the  revenue  laws,  or  of  that  clause  of  the 
Constitution  requiring  "  all  duties,  imposts,  and  excises  to  be 
uniform  throughout  the  United  States."  Hence  the  law  pro- 
viding for  a  small  tax  on  goods  shipped  from  the  United  States 
to  Porto  Pico,  and  from  the  latter  place  to  the  United  States, 
was  held  to  be  valid."  The  political  status'  of  the  inhabitants 
of  the  Philippines  has  not  yet  been  fully  determined. 

Guam  and  Tutuila. — Guam  was  ceded  to  the  United  States 
in  1899.  Tutuila,  a  part  of  the  Samoan  Islands,  came  into  the 
possession  of  the  United  States  in  1900,  through  a  treaty 
entered  into  by  Great  Britain,  Germany  and  the  United  States, 
concerning  the  final  disposition  of  this  group.  Politically, 
both  Guam  and  Tutuila  are  little  more  than  dependencies. 
They  are  governed  by  the  President  through  the  Xavy  Depart- 
ment, and  have  no  official  representative  in  the  United  States. 

Section  4.— The  United  States  shall  guarantee  to  every 
State  in  this  Union  a  republican  form  of  government,  and 
shall  protect  each  of  them  against  invasion;  and,  on  appli- 
cation of  the  legislature,  or  of  the  Executive  (when  the 
legislature  cannot  be  convened)  against  domestic  vio- 
lence. 

Republican  Government. — The  obvious  meaning  of  the  first 
part  of  this  clause  is  that  only  a  republican  form  of  govern- 

"Dooley  v.  United  States,  183  U.  S.,  151.  Stat,  at  Large,  77. 
Downes  v.  Bidwell,  182  U.  S.,  244. 


238  CONSTITUTIOXAL   LaW 

ment  shall  be  allowed  to  exist  in  the  United  States.  By  repub- 
lican is  meant  representaUve,  rather  than  monarchical,  oli- 
garchical, or  democratic.  In  a  monarchy  the  government  is 
hereditary;  in  an  oligarchy  it  is  restricted  to  a  certain  class; 
in  a  pure  democracy  it  is  vested  in  the  whole  people;  in  a 
republic  the  people  are  the  source  of  all  power,  although  the 
actual  business  of  governing  and  law  making  is  in  the  hands  of 
officers  regularly  chosen  by  the  people  to  act  for  them.  The 
government  is  "  representative.'^  Such  was  the  character  of 
the  governments  in  the  several  States  at  the  time  of  the  adop- 
tion of  the  Constitution,  and  such  is  the  character  of  the  Fed- 
eral government.  It  is  to  be  presumed  therefore  that  this  is  the 
form  of  government  guaranteed  by  the  Constitution  to  every 
State  in  the  Union.  It  is  not  expected,  however,  that  every 
State  government  shall  correspond  in  every  detail  with  the 
governments  of  all  or  any  of  the  thirteen  original  States,  or 
with  that  of  the  United  States,  for  there  are  many  shades  of 
republicanism ;  but  that  every  State  government  in  the  Union 
shall  be  representative  in  character.  In  every  case,  Congress 
is  the  final  judge  of  the  character  of  the  government  set  up  in 
any  State,  In  the  exercise  of  this  power  Congress,  at  the  close 
of  the  Civil  War,  provided  for  the  reconstruction  of  republican 
governments  in  the  States  thnt  had  passed  ordinances  of 
secession. 

Foreign  Invasion  and  Domestic  Violence. — It  would  plainly 
]je  the  duty  of  the  Federal  government,  without  this  Constitu- 
tional guaranty,  to  use  its  great  powers  to  protect  any  State 
against  invasion,  for  injury  to  one  is  injury  to  all;  but  it  is 
plainly  not  its  duty  to  interfere  in  every  domestic  disturbance. 
Most  cases  of  domestic  violence  are  local  in  character.  They 
affect  distant  States  and  the  Federal  government  indirectly, 
or  not  at  all.  They  are  easily  within  the  power  of  State  or 
municipal  authorities  to  settle.  For  the  United  States  to  in- 
termeddle on  any  and  every  such  occasion  would  tend  to  pro- 


Miscellaneous  239 

voke  dipsension,  since  the  States  are  naturally  zealous  of  their 
ability  to  take  care  of  themselves.  But  on  the  demand  of  the 
State  legislature,  or  of  the  Governor  (when  the  legislature 
cannot  be  convened),  it  is  the  duty  of  the  United  States  gov- 
ernment to  bring  its  vast  strength  to  the  aid  of  any  State 
having  domestic  trouble.  And  in  any  case,  it  is  proper  and 
lawful  for  the  United  States  to  protect  Federal  property  and 
the  interests  of  the  people  at  large,  whether  threatened  Ijy 
internal  or  external  violence.  This  was  conclusively  shown 
at  the  time  of  the 

Chicago  Riots. — In  1894  occurred  a  great  strike  among  rail- 
road employees.  At  Chicago,  where  the  chief  disturbances 
were,  the  strikers  attempted  to  prevent  trains  from  operating 
in  the  city.  Their  acts  amounted  to  such  serious  interference 
wath  interstate  commerce  and  the  passage  of  United  States 
mails,  that  President  Cleveland,  without  the  demand  of  the 
Governor  of  Illinois,  and  even  against  his  protest,  called  out 
the  Federal  troops  to  suppress  the  disorder.  The  Supreme 
Court  sustained  the  act  of  the  President,  thus  establishing 
the  principle  stated  above." 

"  In  re  Debs,  158  U.  S.,  564. 


240  CoxsTiTUTioxAL  Law 

AMENDING  THE  CONSTITUTION 

Article  5 

The  Congress,  whenever  two-thirds  of  both  houses  shall 
deem  it  necessary,  shall  propose  Amendments  to  this  Con- 
stitution, or,  on  the  application  of  the  legislatures  of  two- 
thirds  of  the  several  States,  shall  call  a  convention  for 
proposing  amendments,  which,  in  either  case,  shall  be 
valid  to  all  intents  and  purposes  as  part  of  this  Constitu- 
tion, when  ratified  by  the  legislatures  of  three-fourths  of 
the  several  States,  or  by  conventions  in  three-fourths 
thereof,  as  the  one  or  the  other  mode  of  ratification  may  be 
proposed  by  the  Congress:  provided,  that  no  amendment 
which  may  be  made  prior  to  the  year  one  thousand  eight 
hundred  and  eight  shall  in  any  manner  affect  the  first  and 
fourth  clauses  in  the  nintli  section  of  the  first  article;  and 
that  no  State,  without  its  consent,  shall  be  deprived  of  its 
equal  suffrage  in  the  Senate. 

Methods  of  Proposing  and  Ratifying  Amendments. — The 

5th  Article  provides  two  ways  of  proposing  and  of  ratifying 
the  Constitution.  Since  the  Constitution  was  adopted  it  has 
been  amended  seventeen  times,  and  each  time  the  amendment 
was  proposed  by  Congress  and  ratified  by  the  legislatures  of 
the  States.  The  other  method  of  obtaining  the  same  end  has 
been  regarded  as  cumbersome,  if  not  actually  dangerous.  It  is 
perhaps  well  that  the  legislatures  of  two-thirds  of  the  States 
have  never  yet  petitioned  Congress  to  call  a  convention  for 
proposing  amendments.  A  large  convention  called  together 
for  that  purpose  would  be  likely  to  arouse  endless  excitement, 
and  to  keep  business  at  a  standstill  awaiting  the  result  of  the 
deliberations;  and  the  members  of  the  convention,  although 
assembled  to  propose  one  amendment,  might  in  their  zeal  be 
led  to  propose  a  great  many  more.  It  has  been  far  better  for 
that  deliberative  body  which  is  annually  in  session,  namely, 
the  Congress  of  the  United  States,  to  do  such  proposing,  and 


Amending  the  Constitution  241 

for  the  ratification  to  be  left  to  those  similar  deliberative 
bodies  in  the  States  which  are  yearly  in  readiness  to  act. 

The  President's  Signature  Unnecessary. — A  proposal  by 
Congress  to  amend  the  Constitution  has  always  taken  the  form 
of  a  joint  resolution.  It  has  been  decided  that  such  a  resolu- 
tion is  legal  without  the  President's  signature."  This  is  a 
point  which  hardly  seems  to  need  judicial  interpretation, 
since  the  majority  required  to  propose  an  amendment,  two- 
thirds,  is  precisely  the  majority  required  to  pass  a  bill  over  the 
President's  veto.  Furthermore,  a  proposal  by  Congress  to 
amend  the  Constitution  does  not  bind  the  country  until  ac- 
cepted by  three-fourths  of  the  States. 

State  Equality  in  the  Senate. — It  is  said  that  the  last  clause 
in  Article  5  is  the  one  part  of  the  Constitution  not  susceptible 
to  amendment.  In  other  words,  no  matter  how  many  amend- 
ments are  proposed  to  limit  the  suffrage  of  any  State  in  the 
United  States  Senate,  that  State  has  an  absolute  veto  on  every 
one  of  them.  The  idea  that  any  State  should  consent  freely 
to  a  limitation  of  its  suffrage  is  not  conceivable. 

Amendments  Prior  to  1808. — The  provision  that  no  amend- 
ment made  prior  to  the  year  1808  should  affect  the  1st  and  the 
4th  Clauses  of  the  9th  Section  of  the  1st  Article  of  the  Con- 
stitution has  no  longer  any  force. 

Reason  for  Allowing  Amendments. — The  Constitution  is 
the  fundamental  law  of  the  land.  It  is  a  written  document 
of  fixed  and  very  definite  principles.  The  makers  of  the  in- 
strument recognized  the  fact  that  their  judgment  was  not 
infallible,  their  foresight  but  limited.  They  could  not  foresee 
the  vast  expansion  which  the  nation  was  to  achieve,  and  pro- 
vide at  once  for  all  the  possible  needs  of  the  people,  or  for  the 
exigencies  to  which  they  might  come.  Realizing  therefore 
that  a  written  constitution  to  be  successful  must  be  made  to 
conform  to  changes  which  progress  and  development  bring, 

"  Holllngsworth  v.  Va.,  3  Dallas,  378. 
16 


242  Constitutional  Law 

they  provided  ways  for  amending  the  instrument  which  they 
had  made.  But  in  so  doing  they  had  regard  for  two  possible 
dangers :  1st,  of  making  amendments  so  easy  that  their  num- 
ber might  in  time  become  a  burden,  if  not  a  jest  among  other 
nations;  2d,  of  making  them  so  difficult  as  to  be  impossible, 
or  so  that  revolution  might  seem  in  comparison  to  be  the 
surer  way  of  effecting  the  desired  change. 

Are  Further  Amendments  Possible? — The  methods  of  pro- 
posing and  of  ratifying  amendments,  as  finally  agreed  to, 
seemed  at  the  time  of  the  Convention  to  be  such  as  to  avoid  as' 
much  as  possible  the  two  extremes  just  mentioned.  When  the 
nation  was  young  these  methods  worked  well.  Within  seven- 
teen years  after  the  adoption  of  the  Constitution  twelve  amend- 
ments were  added.  For  sixty  years  thereafter,  though  many 
were  proposed  in  Congress,  no  mgre  were  adopted  by  the  States. 
Meanwhile,  the  number  of  States,  and  consequently  the  num- 
ber of  Congressmen,  was  increasing,  and  it  was  becoming 
more  and  more  difficult  for  two-thirds  of  both  Houses  of  Con- 
gress to  agree  to  propose  an  amendment,  and  for  three-fourths 
of  the  States  to  ratify  it  when  proposed.  Then  during  that 
time  of  unrest  and  political  excitement  immediately  following 
the  Civil  War,  three  more  amendments  were  proposed  and 
ratified.  It  is  very  possible  that  these  three  amendments  would 
not  have  been  made  but  for  the  unsettled  condition  of  politics 
at  the  time.  Forty-three  years  after  the  15th  Amendment  was 
added  to  the  Constitution  the  16th  and  17th  were  proposed 
and  ratified,  settling  forever  vexed  questions  of  very  long 
standing.  Thus  in  one  hundred  and  twenty-four  years  but 
seventeen  amendments  have  been  added  to  the  Constitution, 
and  most  of  these  at  wide  intervals.  More  amendments  may 
possiblv  be  made  from  time  to  time ;  but  the  truth  of  the  mat- 
ter is  that  population  has  so  increased,  States  have  become  so 
many,  and  business  interests  are  now  so  amazingly  extensive 
and  intricate  that  amending  the  Constitution  has  come  to  be  a 


Validity  of  Debts,  Etc.  213 

gigantic  task.  What  was  but  reasonably  difficult  one  hundred 
years  ago  is  now  possible  only  after  a  very  wide  demand  and  a 
prolonged  agitation. 


1/ 


VALIDITY  OF  DEBTS,  FUNDAMENTAL  LAW. 
OATH  OF  OFFICE 

Article  6 

Section  1,  Clause  1. — All  debts  contracted  and  engage- 
ments entered  into,  before  the  adoption  of  this  Constitu- 
tion, shall  be  as  valid  against  the  United  States  under 
this  Constitution  as  under  the  Confederation. 

Section  1,  Clause  2. — This  Constitution,  and  the  laws  of 
the  United  States  which  shall  be  made  in  pursuance  there- 
of, and  all  treaties  made,  or  which  shall  be  made,  under 
the  authority  of  the  United  States,  shall  be  the  supreme 
law  of  the  land;  and  the  judges  in  every  State  shall  be 
bound  thereby,  anything  in  the  constitution  or  laws  of 
any  State  to  the  contrary  notwithstanding. 

Section  1,  Clause  3. — The  Senators  and  Representatives 
before  mentioned,  and  the  members  of  the  several  State 
legislatures,  and  all  executive  and  judicial  officers,  both 
of  the  United  States  and  of  the  several  States,  shall  be 
bound  by  oath,  or  affirmation,  to  support  this  Constitution; 
but  no  religious  test  shall  ever  be  required  as  a  qualifica- 
tion to  any  office  or  public  trust  under  the  United  States. 

Pre-existing  Debts. — Section  1,  Article  0,  is  now  only  of 
historical  and  ethical  interest.  At  the  time  of  the  Conven- 
tion, however,  the  insertion  of  this  clause  validating  previous 
debts  and  engagements  was  both  just  and  politic.  It  was  just, 
since  there  is  no  more  reason  for  a  nation  to  escape  self-made 
indebtedness  than  for  an  individual ;  it  was  politic,  for  it  set 
forth  to  all  the  world  the  fact  that  the  United  States  govern- 
ment was  honest.  The  clause,  however,  established  no  new 
idea.    It  has  long  been  a  settled  principle  of  law  that  whenever 


244  Constitutional  Law 

a  nation  changes  its  form  of  government,  the  new  government 
succeeds  not  only  to  all  the  rights  and  privileges  of  the  old,  but 
to  all  its  obligations.  Hence  the  United  States  government 
could  hardly  have  repudiated  any  honest  indebtedness  to  which 
it  had  fallen  heir. 

The  Supreme  Law. — The  besetting  weakness  of  the  Confed- 
eration was  that  no  member  of  it  recognized  a  "  supreme  law 
of  the  land."  Each  State  was  sufficient  unto  itself.  Section  2, 
Article  6  of  the  Constitution  plainly  establishes  the  supe- 
riority of  the  Federal  government  and  states  expressly  what 
the  supreme  law  is.  Categorically  the  meaning  of  this  is  as 
follows : 

1.  The  Constitution  is  supreme  over  every  constitution 
enacted  in  the  States,  and  over  every  law  created  by  Congress 
or  by  any  State,  and  over  every  Federal  treaty. 

2.  Every  Federal  law  and  treaty,  made  in  conformity  with 
the  Constitution,  is  also  supreme  over  every  law  enacted  by 
the  States. 

3.  But  every  law  and  treaty  of  the  United  States,  not  in 
conformity  with  the  Constitution,  is  null  and  void. 

4.  And  every  State  statute,  not  in  conformity  with  the 
Federal  Constitution,  laws  or  treaties,  or  with  its  own  constitu- 
tion, is  also  void. 

5.  Lastly,  every  judge  in  every  State  is  bound  to  observe 
these  principles. 

The  last  sentence  means  this :  Every  judge,  whether  sitting 
in  a  State  or  a  Federal  court,  not  only  may  decide  a  State  law 
or  a  United  States  law  to  be  unconstitutional,  but  he  is  bound 
to  do  so  if  it  so  appears  to  him  in  a  regularly  instituted  case. 
But  every  law  and  treaty  is  deemed  to  be  constitutional  until 
it  has  been  declared  otherwise  by  a  competent  court.  The 
court  of  last  resort  for  all  cases  involving  the  constitutionality 
of  a  law  or  treaty  is,  of  course,  the  Supreme  Court. 


Validity  of  Debts,  Etc.  245 

Oath  of  Office. — A  previous  clause  (Article  2,  Section  1, 
Clause  7)  prescribes  the  oath  of  office  for  the  President.  Con- 
gress, in  its  first  session,  1789,  devised  the  following  oath  for 
all  Federal  and  State  officers :  "  I,  A.  B.,  do  solemnly  swear, 
or  affirm  (as  the  case  may  be),  that  I  will  support  the  Con- 
stitution of  the  United  States."  This  simple  oath  was  in  use 
for  many  years,  but  in  1871  it  was  superseded  by  the  follow- 
ing: "  I,  A.  B.,  do  solemnly  swear  (or  affirm)  that  I  will  sup- 
port and  defend  the  Constitution  of  the  United  States  against 
all  enemies,  foreign  and  domestic;  that  I  will  bear  true  faith 
and  allegiance  to  the  same;  that  I  take  this  obligation  freely, 
without  any  mental  reservation  or  purpose  of  evasion;  and 
that  I  will  well  and  faithfully  discharge  the  duties  of  the  office 
on  which  I  am  about  to  enter.    So  help  me  God."  " 

Test  Oath  of  1862. — Moved  no  doubt  by  the  very  tense  and 
exalted  state  of  public  feeling  Congress,  in  1862,  adopted  a 
very  stringent  oath  of  office  for  all  persons  elected  or  appointed 
to  any  position  under  the  government.  The  act  required  the 
appointee  to  swear  that  he  had  never  taken  up  arms  against 
the  United  States,  or  aided  its  enemies ;  that  he  had  not  sought 
or  held  office  under,  or  yielded  any  support  to,  any  pretended 
government  hostile  to  the  United  States.  The  act  was  broad- 
ened by  amendment  in  1865  to  include  attorneys  practicing 
in  the  Federal  courts.  This  oath,  commonly  known  as  the 
"  Ironclad  oath,"  practically  excluded  all  Southerners  from 
holding  office  under  the  government.  With  the  close  of  the 
Rebellion  this  unpopular  restriction  began  to  appear  more  and 
more  unnecessary.  It  was  pronounced  unconstitutional  by  the 
Supreme  Court  in  1867,  in  so  far  as  it  related  to  attorneys 
practicing  before  that  court "  as  being  ex  post  facto  and  a  bill 
of  attainder.    In  1884  it  was  repealed. 

Religious  Toleration. — Toleration,  especially  in  religious 
matters,  is  a  striking  characteristic  of  American  freedom. 

"  Rev.  Stat.,  1757. 

"  Ex  parte  Garland,  4  Wallace,  334. 


246  Constitutional  Law 

The  members  of  the  Convention  realized  the  fact  that  a  man 
may  be  a  very  good  office  holder  despite  a  lack  of  religion. 
No  general  desire  has  ever  been  shown  to  remove  the  prohibi- 
tion contained  in  the  last  clause  of  Section  3  of  Article  6,  and 
to  introduce  a  religious  test  as  a  qualification  to  public  office. 

Among  the  States  this  broad  spirit  of  toleration  has  not 
been  universal.  In  some  States  no  man  who  denies  the  exist- 
ence of  a  Supreme  Being  can  hold  public  office.  For  example, 
the  State  of  Maryland  requires  all  holders  of  public  offices  to 
profess  the  Christian  religion,  or  a  belief  in  a  future  state  of 
rewards  and  punishments. 

EATIFICATION  OF  THE  CONSTITUTION 

Article  7 

The  ratification  of  the  conventions  of  nine  States  shall 
be  sufficient  for  the  establishment  of  this  Constitution  be- 
tween the  States  so  ratifying  the  same. 

Ratification. — The  chief  thing  to  note  here  is  that  the 
establishment  of  the  Constitution  depended  on  a  fractional, 
rather  than  unanimous,  vote  of  the  thirteen  States.  Had 
unanimous  consent  been  required,  it  is  possible  that  the  Con- 
stitution would  never  have  gone  into  operation.  One  stubborn 
State  could  have  put  to  naught  the  tremendous  labors  of  the 
Convention.  As  soon  as  nine  States,  however,  had  signified 
their  willingness  to  accept  the  Constitution,  steps  were  taken 
to  organize  the  government  and  put  it  in  operation.  What 
would  have  been  the  status  of  any  State  that  had  persisted 
in  refusing  to  join  the  Union  is  to-day  an  interesting  question, 
perhaps,  but  not  profitable  to  discuss  here. 

Organizing  the  New  Government. — The  Constitution  was 
signed  by  the  members  of  the  Convention  September  17,  1787, 
and  forwarded  immediately  to  the  Continental  Congress,  with 
a  request  that  it  be  transmitted  to  the  several  States  for  their 


Ratificatiox  of  the  Constitution  247 

ratification.  On  the  28th  of  September  the  Congress  voted 
unanimously  to  transmit  the  Constitution  to  the  State  legis- 
latures, with  the  request  that  they  submit  it  to  "  conventions  of 
delegates  chosen  in  each  State  by  the  people  thereof."  This 
plan  was  followed  in  all  the  States,  and  the  Constitution  was 
ratified  by  the  people  through  their  delegates  in  the  following 
order:  Delaware,  Pennsylvania,  Xew  Jersey,  Georgia,  Con- 
necticut, Massachusetts,  Maryland,  South  Carolina,  New- 
Hampshire,  Virginia,  New  York,  North  Carolina  and  Ehode 
Island.  Hence  it  became  truly  a  people's  Constitution.  The 
last  two  States  deferred  their  consent  until  November  21, 
1789,  and  May  20,  1790,  respectively.  Meanwhile,  as  soon  as 
New  Hampshire,  the  ninth  State  to  take  favorable  action,  had 
ratified  the  Constitution,  Congress  set  to  work  to  put  the  new 
government  into  operation.  This  labor  devolved  naturally  on 
the  Continental  Congress,  for  until  a  new  government  should 
be  actually  established  by  the  election  of  a  new  Congress  and 
of  a  President  and  a  Vice  President,  that  body  was  still  the 
source  of  authority.  In  September,  1788,  provision  was  made 
for  the  immediate  election  of  two  Houses  of  Congress,  and  of  a 
President  and  a  Vice  President,  and  the  first  Wednesday  in 
March  of  the  next  year  was  selected  as  the  day  on  which  the 
new  government  should  commence  operations.  When  the  first 
Wednesday  in  March,  1789,  came,  which  that  year  was  the 
fourth  day  of  the  month,  the  Continental  Congress  ceased  to  be, 
and  the  first  term  of  Congress  under  the  Constitution  officially 
beoran. 


CHAPTER  VIII 

AMENDMENTS  TO  THE  COXSTITUTIOX 
Articles  1-17 


AMENDMEXTS  TO  THE  CONSTITUTION 

In  General. — Twenty-one  amendments  have  been  proposed 
by  Congress;  seventeen  have  been  accepted  and  ratified  by  the 
States.  Instead  of  being  inserted  in  various  suitable  places 
in  the  text  of  the  Constitution,  these  amendments  have  been 
appended  to  the  instrument  in  succession,  and  numbered  ac- 
cordingly. They  have  as  much  legal  force  as  any  clause  in  the 
original  document. 

The  first  ten  amendments,  "which  in  substance  form  a  group 
by  themselves,  were  proposed  by  the  first  Congress,  1T91.  They 
were  proposed  at  a  time  when  fears  were  rife  that  the  people 
were  in  danger  of  oppression  by  the  Federal  government  They 
were  intended  to  be  a  sort  of  bulwark  for  the  people  against 
the  possible  tyranny  of  that  government.  They  are  in  the 
nature  of  a  bill  of  rights,  the  necessity  for  which  does  not  now 
seem  so  apparent  as  it  did  when  they  w^ere  adopted. 

The  11th  and  12th  Amendments  form  a  second  group.  The 
11  til  Amendment,  adopted  in  1798,  merely  put  a  restriction  on 
the  Federal  judiciary.  The  12th  Amendment,  adopted  in 
1804,  established  the  present  method  of  electing  the  Presi- 
dent of  the  United  States. 

The  loth,  14th  and  loth  Amendments,  adopted  shortly 
after  the  Civil  War,  make  a  third  group.  The  general  purpose 
of  these  acts  was  to  improve  the  status  of  the  negroes,  and  to 
prevent  the  oppression  of  citizens  by  the  States'. 

The  16th  and  the  17th  Amendments,  adopted  in  lOin.  for- 
ever settled  two  great  questions.  The  Ifith  Amendment  gave 
Congress  the  power  to  tax  incomes,  a  matter  that  had  been  in 
dispute  for  a  century  and  more;  the  17th  Amendment  gave  the 


252  Constitutional  Law 

people  the  right  to  elect  the  members  of  the  United  States 
Senate,  a  question  that  had  been  agitated  quite  as  long. 

Article  1 
Congress  shall  make  no  law  respecting  an  establishment 
of  religion,  or  prohibiting  the  free  exercise  thereof;  or 
abridging  the  freedom  of  speech  or  of  the  press;  or  the 
right  of  the  people  peaceably  to  assemble,  and  to  petition 
the  government  for  a  redress  of  grievances. 

Religion  and  the  Law. — The  student  will  remember  that 
Clause  3  of  Article  6  states  that  "  no  religious  test  shall  ever 
be  required  as  a  qualification  to  any  office  or  public  trust  under 
the  United  States."  The  1st  Amendment  goes  beyond  that 
by  forbidding  Congress  to  make  any  religion  the  established 
religion  of  the  United  States,  or  to  prevent  the  free  exercise 
of  any  religion.  To  the  last,  however,  there  is  this  exception : 
namely,  that  Congress  is  not  to  be  prevented  from  legislating 
against  any  religion  which,  in  the  common  sense  of  mankind, 
is  not  harmonious  with  public  morals.  For  example,  polygamy 
and  l)igamy  are  none  the  less'  crimes  because  encouraged  by  a 
religious  sect.  To  call  their  advocacy  a  tenet  of  religion  is  to 
offend  the  common  sense  of  mankind.* 

Acts  of  Congress  providing  for  chaplains  in  the  two  Houses 
of  tlie  national  legislature,  and  in  the  army  and  the  navy,  are 
not  to  be  regarded  as  establishing  a  religion.  They  merely 
recognize  in  a  general  way  the  benefits  of  the  Christian 
religion.  Although  criticized  by  some,  they  have  received  the 
general  approval  of  the  nation. 

The  restriction  in  this  amendment,  it  should  be  noticed, 
applies  only  to  Congress.  As  a  matter  of  fa(;t,  however,  most, 
if  not  all,  the  States  have  similar  constitutional  guaranties,  so 
that  religious  freedom  within  the  United  States  is  perma- 
nently assured. 

Freedom  of  Speech  and  of  the  Press. — ^The  restriction  on 
Congress  to  abridge  the  freedom  of  speech  and  of  the  press 

*  Davis  V.  Beason,  133  U.  S.,  333. 


Amendments  to  the  Constitution  253 

has  been  construed  with  liberality.  Liberty  is  not  license,  and 
it  cannot  be  insisted  tliat  even  in  the  United  States  one  may, 
with  perfect  impunity,  speak  or  print  what  he  pleases.  What, 
in  fine,  is  meant  by  this  popular  phrase  is  that  one  may  speak, 
or  write,  or  print  anything,  provided  the  result  is  not  injurious 
to  some  one  else,  or  subversive  of  public  morals.  Liberty  of 
speech,  like  liberty  of  action,  is  always  subject  to  reasonable 
limitations,  for  certainly  a  person  has  no  greater  constitutional 
riglit  to  injure  another  by  word  than  he  has  by  deed. 

Libel  and  Slander. — According  to  the  common  law  of  Great 
Britain,  one  who  made  false  and  defamatory  statements  to  the 
injury  of  another  was  guilty  of  slander,  and  one  who  published 
such  matter  was  guilty  of  libel,  and  for  either  he  could  be 
prosecuted.  The  1st  Amendment  to  the  Constitution  alters 
these  rules  in  no  degree.  Any  person  therefore  who  suffers 
injury  through  slander  or  libel  may  maintain  action  against 
the  wrong-doer  to  recover  damages  for  the  injury  suffered; 
and  if  the  spoken  or  printed  matter  is  such  as  to  disturb  the 
public  peace,  or  to  impair  public  morals,  the  author  may  be 
criminally  liable.  Laws  enacted  by  the  United  States,  or  by 
the  States,  tending  to  prevent  such  abuse  of  the  constitutional 
privilege  of  free  speech  are  valid,  if  not  to  be  condenmed  on 
other  grounds. 

Censorship  of  the  Press. — In  Great  Britain,  prior  to  the 
independence  of  the  American  colonies,  the  government  exer- 
cised supervision  over  the  press,  charging  officials  to  allow 
nothing  to  be  published  that  was  likely  to  injure  either  the 
government  or  the  people,  and  to  suppress  all  publications  of 
such  a  character  that  were  in  print.  In  some  European 
countries  such  oversight  of  the  press  is  still  carried  on  to  some 
extent.  In  America  official  censorship  is  impossible.  The  1st 
Amendment  to  the  Constitution  is  intended  rather  to  deny 
this  power  to  the  Federal  government  than  to  relieve  from 
liability  any  person  guilty  of  the  abuse  of  the  great  privilege 
of  free  speech. 


254  Constitutional  Law 

Privileged  Matter. — The  general  rule  regarding  defamatory 
matter  has  some  exceptions.  The  saying  that  circumstances 
alter  cases  is  often  true  in  respect  to  libel  and  slander.  Thus, 
words  that  in  their  nature  are  slanderous,  and  matter  that  is 
per  se  libelous,  may  nevertheless  be  spoken  or  printed  without 
the  incurrence  of  liability,  if  circumstances  justify  them. 
Among  such  cases  of  privilege  are  the  following : 

1.  Matter  that  is  true. 

2.  Matter  contained  in  the  records  of  judicial  cases. 

3.  Speeches  and  publications  of  legislators  made  in  the 
course  of  official  business.* 

Right  to  Assemble  and  Petition. — The  right  of  the  people 
to  assemble  and  petition  for  redress  of  grievances,  guaranteed 
by  the  1st  Amendment,  is  highly  prized.  Perhaps  such  a 
guaranty  in  a  republican  constitution  may  seem  superfluous, 
but  the  insertion  of  it  makes  assurance  doubly  sure.  The 
privilege  has  been  much  used :  statutes  have  been  enacted,  and 
even  the  Constitution  has  been  amended,  as  results  of  per- 
sistent popular  demand.  But  the  right  of  assembly  is  regu- 
lated by  law,  and  any  gathering  that  becomes  riotous  may  be 
dispersed.  The  prohibition  herein  binds  Congress  only;  but 
since  to  petition  Concrress  for  redress  of  grievances  is  a  privi- 
lege of  the  United  States'  citizenship,  it  cannot  be  abridged 
by  any  State.' 

Article  2 

A  well-regulated  militia  being  necessary  to  the  security 
of  a  free  State,  the  right  of  the  people  to  keep  and  bear 
arms  shall  not  be  infringed. 

Right  to  Bear  Arms. — The  purpose  of  this  amendment  evi- 
dently is  twofold :  first,  to  cheek  tlie  government  from  arbi- 
trarily disarming  the  people  and  reducing  them  to  the  con- 

="  Constitution,  1,  5,  3;  1,  0,  1. 
»U.  S.  V.  Cruikshank,  92  U.  S.,  542. 


Amendments  to  tiii:  Constitution  2.j5 

dition  of  serfs;  secondly,  to  allow  mon  so  to  familiarize 
themselves  with  weapons  as  to  keep  tlic  nation  ever  ready  for 
emergencies.  This  amendment  is  not  necessary  to  give  the 
States  the  right  to  maintain  militia,  for  that  right  is  recog- 
nized elsewhere  in  the  Constitution.*  Xeithcr  does  it  restrain 
the  States  or  Congress  from  regulating  the  matter  of  hearing 
arms,  or  preventing  the  needless  parade  of  the  same,  or  their 
careless  use  to  the  peril  of  the  public.  ITence,  statutes  for- 
bidding private  citizens  to  carry  concealed  weapons  are  con- 
stitutional.* 

Article  3 
No  soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house  without  the  consent  of  the  owner,  nor  In  time  of 
war,  but  in  a  manner  to  be  prescribed  by  law. 

Quartering  of  Troops. — The  r,d  Amendment  is  a  recognition 
of  the  common  law  principle  that  every  man's  house  is  his 
castle,  which  he  may  defend  against  the  entrance  of  any  person 
except  the  authorized  officers  of  the  law.  The  -ith  Amendment 
recognizes  the  same  principle.  The  quartering  of  troops  in  the 
houses  of  private  citizens  might  become  an  almost  unbearable 
species  of  tyranny.  Such  tyranny  was  fresh  in  the  minds  of 
the  members  of  the  first  Congress,  being  one  of  the  many 
acts  of  the  British  sovereign  denounced  in  the  Declaration  of 
Independence.'  Under  this  amendment  the  quartering  of 
troops  is  impossible  in  times  of  peace,  and  impossible  in  times 
of  war,  except  in  ways  prescribed  beforehand  by  law;  that  is, 
by  the  pcoi)le  themselves.  The  amendment,  however,  could 
hardly  be  stretched  to  protect  the  enemies  of  the  country  in 
time  of  war. 

♦Constitution,  1,  S,  16. 

"Andrews  v.  State,  8  Am.  Rep.  8.     Slate  v.  Shelby,  90  Mo.,  302. 
Presser  v.  111..  116  U.  S.,  252. 
•Dec.  of  Ind.,  Tar.  13-17. 


256  Constitutional  Law 

Article  4 

The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches, 
and  seizures,  shall  not  be  violated,  and  no  warrants  shall 
issue,  but  upon  probable  cause,  supported  by  oath  or 
affirmation,  and  particularly  describing  the  place  to  be 
searched,  and  the  persons  or  things  to  be  seized. 

Warrants. — A  warrant,  within  the  meaning  of  this  amend- 
ment, is  a  document  issued  by  a  justice  or  other  competent 
authority,  authorizing  the  arrest  of  some  person  named 
therein,  or  the  examination  of  a  house  or  other  place  particu- 
larly described  for  stolen  or  other  goods  alleged  to  be  concealed 
therein.  The  first  is  a  warrant  for  arrest;  the  latter,  a  search 
warrant.  They  are  alike  hedged  about  with  peculiar,  stringent 
rules.  They  must  particularly  describe  the  person  to  be 
arrested,  or  the  place  to  be  searched.  A  warrant  calling  for 
the  arrest  of  John  Brown  would  be  invalid  for  the  arrest  of 
James  Brown ;  or  one  authorizing  the  search  of  a  certain  house 
on  B  street  would  be  invalid  for  the  search  of  a  similar  house 
on  any  other  street.  Again,  a  warrant  calling  for  the  seizure 
of  liquors  would  not  authorize  the  confiscation  of  counterfeit 
dies  found  in  the  same  place.  Furthermore,  a  warrant  requir- 
ing the  search  of  house  A,  and  the  seizure  of  anything  illegal 
found  therein,  would  be  void  for  generality.  The  Constitu- 
tion requires  that  warrants  shall  be  issued  only  upon  probable 
cause — that  is,  on  the  complaint  of  some  party  who  has  reason- 
able grounds  to  suspect  that  an  offense  has  been  committed; 
and  that  the  complaint  shall  be  supported  by  oath  or  affirma- 
tion. These  requirements,  which  are  as  old  as  the  common 
law,  tend  to  secure  the  people  against  willful  interference  by 
the  State. 

General  Warrants. — A  general  warrant  names  or  describes 
no  person  to  be  arrested,  or  place  to  be  searched,  or  goods  to 
be  seized,  but  allows  the  officer  to  whom  it  is  directed  full 


Amendments  to  the  Constitution  257 

discretion.  They  are  such  convenient  instruments  for  op- 
pression and  annoyance  that  they  have  never  been  in  use  in 
the  United  States.  The  4th  Amendment  forbids  them  by 
implication.  They  had  been  in  use  in  Enfjland  prior  to  the 
American  Revolution,  and  were  not  unknown  in  the  colonies. 
The  writs  of  assistance,  issued  in  Massachusetts  in  17G1,  were 
general  warrants. 

Searches  and  Arrests  Without  Warrants. — Without  a 
warrant,  search  of  a  house  may  be  made  for  tlie  purpose  of 
arresting  a  person  known  to  be  concealed  within  it  charged 
with  treason,  felony,  or  breach  of  the  peace;  or  for  the  pur- 
pose of  evicting  an  unlawful  occupant;  or  perhaps  to  enforce 
sanitary  or  police  regulations.  Furthermore,  one  person  may 
without  a  warrant  arrest  another  whom  he  sees  committing, 
or  attempting  to  commit,  a  felony  or  breach  of  the  peace ;  and 
a  peace  officer  may  arrest  without  warrant  at  any  time  on 
reasonable  grounds  for  suspicion,  or  w^hen  municipal  laws  are 
violated  in  his  presence.  All  these  are  exceptions  to  the  con- 
stitutional guaranty  of  private  liberty,  but  are  justified  on  the 
ground  of  necessity.  The  privacy  of  the  dwelling  should  not 
unduly  hinder  the  proper  execution  of  the  law,  and  the  house 
should  not  become  a  sanctuary  for  crime ;  nor  should  the 
Constitution  become  a  technicality  to  hinder  swift  justice  in 
serious  cases.  But  the  burden  of  proof  that  the  search  or  the 
arrest  without  a  warrant  was  made  under  such  justifiable  cir- 
cumstances is  always  on  the  person  who  conducted  the  search 
or  made  the  arrest. 

Article  5 

No  person  sliall  be  held  to  answer  for  a  capital  or  other- 
wise infamous  crime,  unless  on  a  presentment  or  indict- 
ment of  a  grand  jury,  except  in  cases  arising  in  the  land 
or  naval  forces,  or  in  the  militia  when  in  actual  service 
In  time  of  war  or  public  danger;  nor  shall  any  person  be 
subject  for  the  same  offense  to  be  twice  put  in  jeopardy 

17 


258  Constitutional  Law 

of  life  or  limb;  nor  shall  be  compelled  in  any  criminal 
case  to  be  a  witness  against  himself;  nor  be  deprived  of 
life,  liberty,  or  property,  without  due  process  of  law; 
nor  shall  private  property  be  taken  for  public  use  without 
just  compensation. 

Crimes. — A  capital  crime  is  punishable  by  death  where  such 
punishment  is  allowed ;  an  infamous  crime  subjects  the  guilty 
person  to  infamous  punishment.  The  courts  have  held  that 
infamous  punishment  is  confinement  in  prison  or  penitentiary/ 

Presentments  and  Indictments. — The  distinction  between 
these  two  methods  of  bringing  a  person  to  trial  is  of  no  great 
value.  Properly,  a  presentment  is  the  charge,  or  finding,  of  a 
grand  jury,  based  on  their  own  knowledge  or  observation,  and 
laid  before  the  court  for  further  action;  an  indictment  is  a 
document  drawn  up  by  the  prosecuting  officer  of  the  court — 
in  the  United  States  courts,  the  District  Attorney — charging 
some  person,  or  persons,  with  offenses,  and  laid  before  the 
grand  jury  for  their  investigation.  An  indictment  is  the 
formal  statement  of  an  offense,  prepared  by  the  duly  author- 
ized officer  of  the  State ;  a  presentment  is  only  formal  notice 
to  the  court  that  an  offense  has  been  committed.  If  well 
founded,  a  presentment  leads  to  an  indictment,  for  it  is  the 
duty  of  the  court,  on  receiving  such  formal  notice,  to  cause 
the  prosecuting  officer  to  frame  a  proper  indictment  and  sub- 
mit it  to  the  grand  jury.  Hence,  the  effect  of  each  is  the  same. 
It  is  rare,  however,  that  Federal  grand  juries  make  present- 
ments. The  criminal  business  of  the  Federal  government  is 
small,  and  it  is  usually  brought  before  the  courts  by  indictment 
only. 

The  Grand  Jury. — The  jury  mentioned  elsewhere  in  the 
Constitution  is  the  well-known  petit,  or  trial  jury,  composed 
of  twelve  men.  The  grand  jury  is  very  different  in  both 
number  and  purpose.     It  is  generally  larger  than  the  petit 

^Ex  parte  Wilson,  114  U.  S.,  417. 


Amexdmexts  to  the  Coxstitutiox  259 

jury;  it  does  not  try  offenses,  but  investigates  charges;  and  its 
determinations  do  not  depend  on  unanimity,  or  settle  one's 
guilt  or  innocence. 

At  common  law  the  grand  jury  consisted  of  from  twelve  to 
twenty-three  men.  In  the  various  States  the  number  to-day 
is  a  matter  of  local  regulation.  In  many  the  common  law  rule 
is  followed,  but  in  others  it  has  been  changed.  The  tendency 
is  to  reduce  the  number.  In  the  Federal  courts,  however,  the 
number  is  regulated  by  statutes,  which  declare  that  the  grand 
jury  shall  consist  of  at  least  sixteen  and  not  more  than  twenty- 
three,  of  whom  twelve  must  concur  to  find  an  indictment. 

Members  of  the  grand  jury  are  summoned  at  intervals  by 
the  sheriff  in  the  State  courts,  by  the  marshal  in  the  Federal 
courts,  from  among  the  male  inhabitants  of  the  vicinity.  The 
purpose  of  these  men,  as  has  been  intimated,  is  to  investigate, 
either  on  their  own  initiative  or  at  the  instance  of  the  prose- 
cuting officer  of  the  court,  all  offenses  within  the  jurisdiction 
of  the  court.  Although  they  may  make  charges  on  their  own 
volition,  they  rarely  do  so,  but  confine  their  attention  to 
matters  brought  to  their  notice  by  formal  indictment.  Their 
sessions  are  usually  in  secret,  and  they  have  authority  like  a 
court  to  summon  and  examine  witnesses.  If  on  investigation 
of  a  charge  they  find  sufficient  evidence  to  warrant  a  public 
prosecution  they  return  the  indictment  endorsed  "  A  true 
bill."  If  they  do  not  find  sufficient  evidence,  they  endorse  the 
indictment  "  Xot  found,"  and  proceedings  against  the  accused 
are  quashed.  The  finding  of  a  true  bill  by  the  grand  jury 
does  not  mean  that  the  accused  is  guilty  of  the  offense  charged ; 
that  is  a  question  to  be  settled  later  by  the  trial  jury.  Thus 
both  juries  are  bulwarks  of  the  people's  liberties.  Before  a 
person  can  be  made  to  suffer  judicial  punishment  for  a  serious 
illegal  act,  he  must  first  be  charged  with  the  offense  by  the 
grand  jury  or  by  the  proper  officer;  the  charge  must  then  be 
investigated  by  the  grand  jury,  after  which  he  must  be  tried 


260  Constitutional  Law 

before  the  petit  jury,  all  of  whom  must  concur  before  pro- 
nouncing him  guilty. 

Exceptions. — Cases  excepted  from  the  operation  of  this 
amendment  are  those  arising  in  the  land  or  naval  forces,  or 
in  the  militia  while  in  actual  service  of  the  United  States. 
Congress,  as  we  have  seen,  may  provide  for  calling  forth  the 
militia  to  suppress  insurrections  or  repel  invasions.  When 
thus  called  forth,  the  militia  of  the  States  cease  to  be  State 
troops;  they  belong  to  the  military  arm  of  the  government, 
and  as  such  are  subject  to  military  regulations.  In  order  to 
enforce  discipline,  offenses  in  the  army,  navy,  and  the  militia 
while  in  service,  are  triable  before  martial  courts,  the  pro- 
ceedings of  which  have  already  been  explained. 

Second  Trial. — The  clause,  "  nor  shall  any  person ....  be 
twice  put  in  jeopardy  of  life  or  limb,"  is  an  old  expression 
belonging  to  the  common  law.  It  means  simply  that  no  one 
shall  be  tried  twice  for  the  same  offense.  It  includes  mis- 
demeanors as  well  as  capital  offenses.*  The  provision  binds 
only  the  United  States,*  but  the  majority  of  the  States,  if  not 
all,  have  adopted  the  same  rule.  Immunity  from  second  trial 
exists,  however,  only  when  there  has  been  actual  jeopardy,  and 
when  the  offenses  are  identical.  That  is,  when  by  the  verdict 
of  a  jury  duly  impanelled  before  a  court  having  jurisdiction, 
a  person  has  been  acquitted  of  an  accusation,  he  cannot  again 
be  put  to  trial  on  the  same  charge.  Conviction  is  likewise  a 
bar  to  further  action  except  on  the  petition  of  the  prisoner 
himself.  Offenses  are  said  to  be  the  same  when  evidence  to 
support  one  indictment  will  equally  sustain  the  other.  In 
case  of  a  mistrial  this  clause  has  no  application.  Thus  if  the 
jury  disagree,"  or  are  discharged  before  reaching  a  verdict,*^ 

•Bishop's  Criminal  Law,  1,  990;  Ex  parte  Lange,  18  Wall.,  163. 
•Fox  V.  Ohio,  5  Howard,  410.     Maxwell  v.  Dow,  176  U.  S.,  581. 
"U.  S.  V.  Perez,  9  Wheaton,  579. 
"Bishop's  Criminal  Law,  1,  1033.     Dreyer  v.  111.,  178  U.  S.,  71. 


Amendments  to  the  CoN':.TiTrTrox  201 

or  judgment  is  arrested  after  a  verdift,  there  is  no  jeopardy  for 
which  the  accused  can  claim  immunity  from  a  second  arraign- 
ment. 

Self-incrimination. — The  5th  Amendment  restates  another 
principle  of  the  common  law  in  declaring  tliat  no  person  shall 
he  compelled  in  any  criminal  case  to  be  a  witness  against  him- 
self. Herein  the  common  law,  as  administered  in  England 
and  in  the  United  States,  is  far  more  favorable  to  the  accused 
than  the  civil  law,  as  administered  in  certain  other  countries. 
Under  the  civil  law  an  accused  may  not  only  be  forced  to 
testify  in  respect  to  the  point  at  issue,  but  to  disclose  his 
previous  history,  whether  it  is  relative  to  the  case  or  not ;  and 
in  times  past  torture  was  not  uncommon  as  a  means  of  wring- 
ing from  him  a  confession  of  guilt.  The  freedom  from  self- 
incrimination,  guaranteed  by  the  5th  Amendment,  applies  not 
only  to  accused  persons,  but  also  to  all  who  give  testimony  in 
criminal  cases :  no  one  can  be  compelled  to  answer  questions 
rendering  him  liable  to  a  subsequent  prosecution.  It  is  gen- 
erally held,  however,  that  a  prisoner,  although  he  cannot  be 
forced  to  give  testimony  against  himself,  may  take  the  witness 
stand  on  his  own  volition,  in  which  case  he  may  be  cross- 
examined  like  other  %vitnesses  on  his  voluntary  evidence. 

The  rule  against  self-incrimination  does  not  apply  to  civil 
cases,  and  it  is  questionable  if  in  criminal  cases  it  is  best  for 
all  concerned.  It  is  supported  by  reverence  for  the  past,  and 
it  is  quite  in  keeping  with  the  principle  that  the  entire  burden 
of  proving  a  criminal  charge  is  on  the  accuser;  but  it  closes 
at  once  the  most  direct  ])ath  of  inquiry  leading  to  the  truth. 

Due  Process  of  Law. — Tliis  phrase  is  not  self-explanatory. 
Not  every  thing  done  in  the  name  of  law  is  due  process;  not 
every  proceeding  engineered  by  legislators  is  law  in  the  ac- 
cepted sense.  That  is  due  process  of  law  which  is  in  accord- 
ance with  the  general  law  of  the  land.  In  judicial  proceedings 
due  process  demands  a  hearing  before  condemnation,  a  judg- 


263  Constitutional  Law 

ment  before  dispossession  or  punishment;  in  legislative 
matters  it  allows  only  such  exertion  of  the  powers  of  govern- 
ment as  the  settled  maxims  of  the  law  permit.  A  judicial 
decree  therefore  after  proper  investigation,  however  onerous 
it  may  be,  is  due  process,  but  lynch  law  is  not;  taxation  and 
the  exercise  of  the  right  of  eminent  domain,  which  divest 
persons  of  property  somewhat  against  their  wills,  and  draft 
acts,  which  arbitrarily  restrain  men  of  their  liberty,  are  due 
process,  because  they  are  all  in  accordance  with  established 
principles  of  law;  but  bills  of  attainder,  acts  of  confiscation, 
legislative  judgments  and  forfeitures,  although  made  in  the 
likeness  of  law,  are  not  due  process  within  the  meaning  of  the 
5th  Amendment.  The  individual,  no  matter  how  insignifi- 
cant, is  thus  secured  against  the  arbitrary  exercise  of  power; 
the  maxim  that  might  makes  right  loses  its  significance." 

Eminent  Domain. — The  right  to  take  private  property  for 
public  use,  commonly  called  the  right  of  eminent  domain,  has 
been  an  attribute  to  sovereignty  since  time  immemorial.  It 
is  an  arbitrary  exercise  of  governmental  power,  but  sanctioned 
by  necessity,  and  softened  by  compensation.  Although  the 
government  may  take  private  property,  it  may  do  so  only  for 
public  purposes  and  after  reasonable  payment. 

Exercised  by  Whom. — 1st,  The  Federal  government  may, 
for  national  purposes,  exercise  this  power  anywhere  within  the 
geographical  limits  of  the  United  States."  2d,  Every  State 
may  exercise  the  power  for  State  purposes  anywhere  within 
its  boundaries.  3d,  Every  State  may  delegate  the  right  to 
municipal  corporations,"  or  to  private  persons  or  corporations 

"For  a  fuller  discussion  of  this  phrase  see  the  argument  of 
Daniel  Webster  in  the  case  of  Dartmouth  College  v.  Woodward, 
4  Wheaton,  519;  Webster's  Works,  5,  487. 

"Cherokee  Nation  v.  Kans.  R.  R.,  135  U.  S.,  041.  Kohl  v. 
United  States,  91  U.  S.,  307. 

"  Dallas  V.  Hallock,  44  Oregon,  246. 


Amendments  to  ttif.  Constitution  203 

engaged  in  public  business."  Accordingly,  railroad  and  canal 
companies  are  allowed  to  exercise  the  power,  since  their  busi- 
ness is  public. 

Public  Use. — What  constitutes  public  use  is  a  question  to  be 
decided  by  the  merits  of  every  case.  It  is  sufficient  if  the  use 
to  which  the  property  is  put  is  generally  advantageous  to  the 
community,  but  there  is  no  rule  as  to  the  degree  of  the  ad- 
vantage to  be  thus  gained.  Among  the  uses  that  have  been 
declared  public  sufficiently  to  support  this  arbitrary  right  are 
the  following:  highways,  canals,  bridges,  railroads,  wharves, 
waterworks,  parks,  school  houses,  and  telegraph  and  telephone 
lines. 

Property. — Almost  any  kind  of  property,  real  and  personal, 
tangible  and  intangible  (such  as  franchises),  may  be  taken," 
unless  already  put  to  a  public  use.  Money  cannot  be  seized, 
for  the  payment  must  be  in  money." 

Proceedings. — The  Constitution  does  not  prescribe  how  the 
right  of  eminent  domain  shall  be  exercised ;  that  is  left  en- 
tirely to  the  discretion  of  the  legislature  which  exercises  or 
delegates  the  power.  In  general,  offers  to  purchase  are  made 
first.  If  these  are  not  accepted,  notice  that  condemnation 
proceedings  are  about  to  begin  is  then  sent  to  the  owner— 
although  this  is'  not  compulsory.  Appraisers  then  view  the 
property  to  estimate  its  fair  value,  and  on  their  report,  what 
is  judged  to  be  a  fair  compensation  is  given  to  the  owner,  and 
the  property  is  ready  to  be  put  to  the  desired  use.  Thp  pro- 
ceedings thus  result  in  a  sort  of  forced  sale  of  property  for  the 
benefit  of  the  public  at  large. 

"Young  V.  Buckingham,  5  Ohio,  48.5. 
"West  River  Bridge  Co.  v.  Dix,  6  Howard,  507. 
"  Burdett  v.  Sacramento,  12  Cal.,  76.    Cary  Library  v.  Bliss,  151 
Mass.,  364. 


264  Constitutional  Law 

Article  G 

In  all  criminal  prosecutions,  tlie  accused  shall  enjoy  the 
right  to  a  speedy  and  public  trial,  by  an  impartial  jury 
of  the  State  and  district  wherein  the  crime  shall  have  been 
committed,  which  district  shall  have  been  previously  as- 
certained by  law,  and  to  be  informed  of  the  nature  and 
cause  of  the  accusation;  to  be  confronted  with  the  wit- 
nesses against  him;  to  have  compulsory  process  for  ob- 
taining witnesses  in  his  favor,  and  to  have  the  assistance 
of  counsel  for  his  defense. 

Privileges  of  Accused  Persons. — The  Constitutional  guaran- 
ties to  persons  accused  of  crime  are  many.  Summed  up  in 
one  paragraph,  including  those  in  the  present  amendment  and 
in  other  clauses  in  the  Constitution,  they  are  as  follows :  The 
trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by 
jury,  and  shall  be  held  in  the  State  where  the  crime  was  com- 
mitted, or  where  Congress  may  provide;  the  jury  shall  be 
chosen  from  the  district  in  which  the  crime  shall  have  been 
committed;  before  trial,  the  accused  shall  be  presented,  or 
indicted,  by  a  grand  jury,  except  in  military  circles,  and  shall 
be  informed  of  the  charge  against  him ;  the  trial  shall  be  speedy 
and  public ;  the  accused  shall  be  confronted  with  the  witnesses 
against  him,  shall  have  compulsory  process  for  obtaining 
witnesses  in  his  favor,  and  shall  be  allowed  counsel  for  his 
defense ;  after  one  acquittal  or  conviction,  the  accused  cannot 
be  tried  again  for  the  same  offense;  he  cannot  be  forced  to 
testify  against  himself,  or  be  deprived  of  life  or  liberty  without 
due  process  of  law ;  and  lastly,  excessive  bail  shall  not  be  re- 
quired of  him,  cruel  and  unusual  punishments  shall  not  be 
imposed  on  him,  and  excessive  fines  shall  not  be  demanded. 

By  these  provisions  the  Constitution  safeguards  the  citizen 
against  many  things:  against  secret  and  inquisitorial  trials; 
against  long  delays;  against  confinement  without  cause,  accu- 
sation without  defense,  judgment  without  proof,  and  punish- 
ment that  is  inhuman.    To  realize  how  much  less  stringent  the 


Amendments  to  the  Coxstitutiox  2G5 

criminal  law  and  procedure  of  to-da)^  is  than  was  that  of  long 
ago,  one  has  but  to  read  history.  Time  was  when  men  lan- 
guished in  prison  on  trumped  up  charges  for  indefinite  periods ; 
when  brought  to  trial  they  had  not  the  assistance  of  witnesses 
or  of  counsel,  and  upon  conviction  they  suffered  punishment  to 
the  extreme  of  barbarity.  To-day,  at  least  in  those  countries 
where  the  English  common  law  prevails,  it  is  the  aim  of 
criminal  jurisprudence  to  give  accused  persons  every  possible 
chance  of  defense.  Xot  only  is  the  burden  of  proving  every 
criminal  charge  on  the  State,  but  the  State  enables  the  accused 
to  obtain  witnesses,  and  even  provides  him  with  counsel,  if  he 
is  unable  to  obtain  such  assistance  himself. 

These  constitutional  guaranties  have  force  only  in  connec- 
tion with  Federal  offenses.  States  are  not  bound  by  them, 
except  where  so  commanded  by  the  14th  Amendment;  but 
most,  if  not  all,  of  the  States  have  similar  provisions  in  their 
own  constitutions.  Furthermore,  some  of  these  are  not  to  be 
taken  in  the  narrow,  literal  sense.  For  example,  the  Constitu- 
tion provides  for  a  "  speedy  and  public  trial."  But  only  such 
speed  and  publicity  can  be  given  as  is  consistent  with  the 
nature  of  the  crime.  It  is  often  necessary  to  postpone  a 
trial,  much  against  the  wishes  of  the  accused,  on  account  of 
the  press  of  other  business  before  the  court,  or  to  allow  time  in 
which  to  investigate  fully  the  circumstances  of  the  case ;  and  al- 
though criminal  trials  are  usually  open  to  the  public,  it  is  some- 
times necessary  to  exclude  certain  persons  from  the  court,  either 
because  they  have  no  connection  with  the  case,  or  for  fear  of 
their  being  morally  corrupted  by  the  facts  brought  out.  Again, 
the  Constitution  provides  that  the  accused  shall  be  confronted 
by  witnesses  against  him,  in  order  that  he  may  hear  their  testi- 
mony and  cross-examine  them :  but  in  homicide  cases  the  dying 
declarations  of  the  person  killed  are  allowed  as  evidence,  and 
the  sworn  testimony  given  in  a  former  trial  by  witnesses  long 
since  dead  is  admitted  in  a  second  trial;  and  these  do  not 


266  CoxsTiTUTioxAL  Law 

admit  of  cross-examination.  Finally,  although  these  con- 
stitutional provisions  are  worded  imperatively,  there  is  no 
doubt  that  the  accused  may  waive  most  of  them,  if  he  so  desires 
and  the  court  consents. 

Article  7 

In  suits  at  common  law  where  the  value  In  contro- 
versy shall  exceed  twenty  dollars,  the  right  of  trial  by 
jury  shall  be  preserved,  and  no  fact  tried  by  a  jury  shall 
be  otherwise  re-examined  in  any  court  of  the  United 
States,  than  according  to  the  rules  of  the  common  law. 

The  General  Purpose. — The  general  purpose  of  this  amend- 
ment was  to  preserve  the  jury  for  all  issues  of  fact,  where 
the  value  in  controversy  should  exceed  a  certain  amount;  and, 
furthermore,  to  prohibit  a  review  by  a  court  without  a  jury 
of  the  conclusion  of  fact  reached  by  a  jury  in  the  first  instance. 
In  other  words,  if  a  cause  is  tried  before  a  jury  in  the  first 
place,  the  issue  of  that  cause,  if  re-examined  at  all,  must  be 
re-examined  before  a  jury.  The  common  law  recognized  two 
methods  of  bringing  about  the  review  of  a  case:  1st,  by  the 
grant  of  a  new  trial  before  the  court  in  which  the  action  was 
first  tried;  2d,  by  a  writ  of  error  to  a  higher  court.  When, 
however,  a  case  is  carried  to  a  higher  court  on  a  writ  of  error, 
the  court  reviews  nothing  but  the  rulings'  in  law  of  the  loM^er 
court,  not  the  facts.  In  case  the  review  court  finds  error  in  the 
proceedings  of  the  other,  it  usually  remands  the  cause  back  to 
it  for  retrial.  Most  of  the  cases  removed  to  the  Supreme  Court 
are  carried  there  on  writs  of  error.  Appeal  is  a  process  of  civil 
law  origin,  not  known  to  the  common  law.  An  appealed  case 
is  reviewed  by  a  superior  court  both  as  to  law  and  fact. 

Waiver  of  Trial. — The  phrase,  "  right  of  trial  by  jury  shall 
be  preserved,"  is  not  imperative.  In  any  civil  suit,  the  right  to 
trial  by  a  jury  may  be  waived  by  the  party  entitled  to  it,  and  it 
frequently  is. 


Amendments  to  the  Constitution  2G7 

The  Common  Law. — What  is  the  common  law?  It  is  that 
system  of  jurisprudi'iicc  which  has  prevailed  in  England  since 
time  immemorial  and  has  been  adopted  in  the  United  States 
to  a  greater  or  less  extent — a  system  which  rests  for  its 
authority,  not  on  tiie  will  of  legislatures,  but  on  the  universal 
consent  and  long-continued  practice  of  the  people.  It  is  some- 
times called  the  lex  non  scripta,  and  customary  law,  because 
its  principles  were  not  created  offhand  and  expressed  in  written 
form  like  statute  law,  but  developed  by  slow  degrees  out  of 
custom  and  tradition.  A  custom  long  in  use  among  a  people 
may  come  in  time  to  have  the  binding  force  of  law ;  it  becomes 
an  established  legal  principle  when  sanctioned  by  judicial 
decisions.    Such,  in  brief,  was  the  origin  of  the  common  law. 

There  is  no  distinct  body  of  American  common  law.  Juris- 
prudence in  the  United  States  is  based  on  the  English  common 
law  as  it  existed  in  the  colonies  at  the  time  of  their  severance 
from  the  mother  country.  'I\rany  of  the  most  valued  principles 
of  the  common  law  were  embodied  in  the  Constitution  of  the 
United  States,  particularly  in  the  first  ten  amendments,  and 
in  the  constitutions  of  the  several  States ;  and  in  many  States 
the  common  law  is  by  their  constitutions  declared  to  be  the  law 
until  repealed  or  superseded  by  statute.  That  is,  where  there 
is  no  express  statute  that  can  be  applied  to  settle  a  controversy, 
it  is  settled  if  possible  according  to  the  principles  of  the  Eng- 
lish common  law,  as  adopted  in  the  State  where  the  contro- 
versy arose.  To  illustrate :  in  the  absence  of  a  statute  to  the 
contrary,  a  married  woman  would,  on  the  death  of  her  hus- 
band, be  entitled  to  a  life  estate  in  one-third  of  the  real 
property  of  her  husband,  providing  she  had  had  a  child  by  him 
ca])able  of  inheriting  the  propert\\  This  dower  right  of  a 
married  woman  is  one  of  the  oldest  principles  of  the  common 
law. 

The  Common  Law  Modified. — "Many  common  law  principles 
were  severe  as  suited  to  harsh  times.    For  example,  the  legal 


2G8  Constitutional  Law 

existence  of  a  woman  was,  by  marriage,  merged  in  that  of  the 
husband.  She  and  all  her  property  were  his.  But  this  hard 
feature  of  the  law  has  since  been  so  modified,  both  in  England 
and  in  the  United  States,  that  a  married  woman  has  many 
rights  to-day  that  were  utterly  unknown  to  the  old  law.  Simi- 
larly, although  some  of  the  rules  of  the  common  law  still 
remain  unchanged,  most  of  them  have  been  greatly  modified, 
and  some  altogether  blotted  out,  by  statutes. 

Common  Law  Crimes. — Since  there  is  no  common  law  of  the 
United  States,  no  act  can  be  declared  an  offense  against  the 
Federal  government  which  has  not  been  previously  so  declared 
by  statute."  In  other  words,  there  are  no  common  law  crimes 
of  which  Federal  courts  can  take  cognizance. 

The  Civil  Law. — The  phrase  common  law  is  often  used  in 
contradistinction  to  civil  law.  Briefly,  the  latter  is  the  system 
of  jurisprudence  used  as  the  basis  of  law  and  judicial  pro- 
cedure in  all  the  continental  countries  of  Europe,  and  in  all 
the  western  world  except  the  United  States.  It  is  a  written 
code,  many  principles  of  which  may  be  traced  back  to  the 
Institutes  of  Justinian,  or  the  Eoman  law.  It  differs  mate- 
rially from  the  common  law  in  many  of  its  rules  and  methods 
of  procedure,  and  in  its  origin,  having  been  compiled  by  law 
writers,  not  founded  on  custom.  It  is  the  fundamental  law  of 
one  State  in  the  Union — Louisiana. 

"  Suits  at  Common  Law." — This  phrase  has  been  interpreted 
to  mean :  "  suits  in  which  legal  rights  were  to  be  ascertained 
and  adjusted,  as  distinguished  from  purely  equitable  rights 
and  remedies;  suits  which  the  common  law  recognized  as 
among  its  old  and  settled  proceedings.""  Actions  for  debt, 
for  bailment,  for  trespass,  and  for  slander  are  examples  of 
well-known  suits  at  common  law. 

"U.  S.  V.  Hudson,  7  Cranch,  32.    U.  S.  v.  Brltton,  108  U.  S.,  199. 
"  Parsons  v.  Bedford,  3  Peters,  433,  447. 


Amendments  to  the  Cunstitution  269 

Article  8 

Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted. 

Bail. — Bail,  as  used  here,  is  the  security  offered  or  demanded 
for  the  temporary  release  of  persons  under  arrest.  It  is  in 
accordance  with  modern  progress  to  inflict  as  little  incon- 
venience on  accused  persons  as  possible,  until  they  have  been 
tried  and  found  guilty.  Hence,  it  is  tlie  rule,  rather  than  the 
exception,  to  allow  such  persons  their  liberty  during  the  time 
between  arrest  and  trial,  provided  some  other  responsible 
person  or  persons  will  become  surety  for  their  appearance  at 
the  trial.  The  person,  so  delivered  or  bailed,  is  thereafter  in 
the  custody  of  his'  sureties,  and  may,  at  any  time  or  place,  be 
arrested  by  them  personally,  or  on  their  warrant,  and  sur- 
rendered to  the  court  in  discharge  of  their  liability.  If  the 
bailee  appears  in  court  at  the  time  specified,  the  sureties  are 
discharged;  if  he  fails  to  appear,  the  bond  of  the  sureties  is 
forfeited,  and  may  be  collected  like  any  property  due  to  the 
State.  The  provision  that  "  excessive  bail  shall  not  be  re- 
quired "  prevents  the  courts  from  placing  the  amount  of  the 
bond  so  high  as  to  be  prohibitive,  or  out  of  proportion  to  the 
crime.  Whether  in  any  case  bail  is  excessive  depends  on  the 
circumstances.  For  very  serious  cases,  like  murder,  it  may  be 
reasonable  to  make  the  amount  very  great,  or  to  refuse  it  alto- 
gether; but  for  slight  offenses  a  moderate  sum  should  be 
sufficient.  The  same  principles  apply,  of  course,  to  the  im- 
posing of  fines. 

Cruelties. — The  prohibition  respecting  cruel  and  unusual 
punishments  was  intended  to  soften  the  rigors  of  the  common 
law,  which  allowed  such  punishments  as  drawing  and  quarter- 
ing, burning,  branding,  and  mutihiting.  Death  by  hanging 
or  by  electricity,  life  imprisonment,  disfranchisement,  for- 
feiting of  civil  rights — tlicse,  although  severe,  are  not  regarded 
as  cruel  and  unusual;  nor  is  whipping,  which  in  some  States 


270  Constitutional  Law 

is  legalized  and  regarded  as  salutary.  In  all  cases,  it  is  for 
the  legislature  to  determine  the  punishment  for  offenses,  and 
only  in  extraordinary  cases  would  its  judgment  be  questioned. 

Article  9 

The  enumeration  in  the  Constitution  of  certain  rights 
shall  not  be  construed  to  deny  or  disparage  others  retained 
by  the  people. 

The  first  eight  amendments  to  the  Constitution  simply 
record  certain  popular  common  law  rights.  The  fact  that  such 
a  specific  statement  is  made  might  lead  some  to  infer  that 
other  rights  were  not  to  be  recognized.  To  check  any  such 
inference  the  9th  Amendment  explicitly  declares  that  this 
enumeration  of  rights  shall  not  mean  a  denial  of  other  rights 
naturally  incident  to  the  people.  In  other  words,  the  Federal 
government  may  not,  on  the  strength  of  this  incomplete  enu- 
meration, deny  the  people  liberties  not  herein  mentioned.  The 
very  language  of  the  amendment  shows  the  utter  impossibility 
of  making  any  complete  enumeration  of  rights. 

Article  10 
The  powers  not  delegated  to  the  United  States  by  the 
Constitution,   nor   prohibited   by    it   to   the    States,   are 
reserved  to  the  States  respectively,  or  to  the  people. 

The  meaning  of  this  is  clear.  The  Constitution  has  given 
to  the  general  government  certain  large  powers :  the  power  to 
tax,  to  declare  war,  to  regulate  commerce,  etc.  Furthermore, 
the  Constitution  prohibits  to  the  States  the  exercise  of  certain 
enumerated  powers:  to  coin  money,  to  emit  bills  of  credit,  to 
lay  export  duties,  etc.  All  other  powers,  the  10th  Amend- 
ment declares,  are  reserved  to  the  States'  in  their  corporate 
capacity,  or  to  the  people,  which  n mounts  to  the  same  thmg. 

In  effect,  the  amondmcnt  is  a  recognition  of  the  fact  that  the 
people  are  the  source  of  power  in  the  United  States.     The 


Amendments  to  the  Constitution  271 

people  have  organized  a  double  government,  that  of  the  United 
States,  and  that  of  the  States.  Wliatever  powers  of  govern- 
ment the  people  have  not  delegated  by  their  Constitution  to 
the  United  States,  or  prohibited  to  the  several  States,  they  have 
reserved  to  themselves,  as  segregated  in  their  respective  States. 
Thus  the  people  of  the  States  may  not  coin  money,  for  that 
is  forbidden  to  the  States  by  the  Constitution;  but  they  may 
establish  private  banks  for  the  circulation  and  deposit  of 
money,  for  that  is  not  forbidden.  Again,  the  people  of  the 
States  may  not  make  regulations  of  commerce  affecting  other 
States  or  foreign  nations,  for  the  Constitution  delegates  that 
power  to  the  United  States ;  but  they  may  regulate  commerce 
within  their  own  borders  to  any  reasonable  extent,  for  the 
Constitution  neither  delegates  that  power  to  Congress,  nor 
forbids  it  to  the  States.  It  is  such  a  right  as  is  "  reserved  to 
the  States  respectively,  or  to  the  people." 

Article  11 

The  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity  com- 
menced or  prosecuted  against  one  of  the  United  States  by 
citizens  of  another  State,  or  by  citizens  or  subjects  of  any 
foreign  State. 

Suits  against  States. — This  amendment  became  a  part  of 
the  fundamental  law  in  1798.  A  few  years  previous  the 
Supreme  Court,  in  the  case  of  Chisholm  v.  Georgia,'"  had 
decided  that,  according  to  the  Constitution  and  the  Judiciary 
Act  of  1789,  a  State  of  the  Union  could  be  sued  in  a  Federal 
court  by  citizens  of  another  State,  or  by  citizens  or  subjects  of 
foreign  nations.  The  decision  caused  much  apprehension. 
Theoretically,  sovereignty  cannot  be  sued,  because  sovereignty 
is  above  the  law ;  hence,  to  say  that  States  could  be  made  uu- 

*>  2  Dallas,  419, 


272  Constitutional  Law 

willing  defendants  to  suits  at  law  by  private  citizens,  was,  in 
the  opinion  of  many,  an  entering  wedge  in  the  principle  of 
State  rights.  The  11th  Amendment  was  therefore  proposed 
and  ratified  shortly  after  to  correct  this  situation.  By  it  the 
dignity  of  the  States  was  no  doubt  bolstered  up,  but  in  the 
minds  of  many  people,  the  power  of  the  national  judiciary  to 
work  substantial  justice  to  the  citizens  was  in  many  cases 
weakened.  The  law  regarding  the  suability  of  States  is  now 
settled  as  follows : 

1.  The  United  States  cannot  be  sued  at  all  except  with  its 
own  consent,  but  that  consent  has  been  given  by  the  establish- 
ment of  the  Court  of  Claims. 

2.  A  State  cannot  be  sued  by  any  private  citizen  without  its 
consent'";  and  suits  against  a  State's  executive  officers  are 
suits  against  the  State."  Most  of  the  States,  however,  have 
made  provision  for  the  maintenance  of  suits  against  them  by 
citizens  in  their  own  courts. 

3.  A  State  may  be  sued  without  its  consent  by  the  United 
States,  by  another  State,  and  probably  by  a  foreign  govern- 
ment. 

The  restriction  in  the  11th  Amendment  applies  only  to 
original  suits.  It  does  not  preclude  a  review  of  the  decisions 
of  other  tribunals  in  the  Supreme  Court,  although  the  review 
may  cause  a  State  to  become  defendant." 

Article  12 
This  has  been  already  discussed  in  connection  with  Article 
2,  Section  1,  Clause  3.    See  ante,  page  171. 

Article  13 
Section  1,  Clause   1. — Neither  slavery  nor  involuntary 
servitude,  except  as  a  punishment  for  crime,  whereof  the 

*»  Hans  V.  La.,  134  U.  S.,  1.    R.  R.  Co.  v.  Tenn.,  101  U.  S.,  337. 

»N.  C.  V.  Temple,  134  U.  S.,  22. 

"  Cohens  v.  Virginia,  6  Wheaton,  264. 


Amendments  to  the  Constitution  273 

party  shall  have  been  duly  convicted,  shall  exist  within 
the  United  States,  or  any  place  subject  to  their  juris- 
diction. 

Section  1,  Clause  2. — Congress  shall  have  power  to  en- 
force this  article  by  appropriate  legislation. 

Slavery. — In  the  13th  Amendment  i.s  the  only  occurrence 
of  the  word  slavery  in  the  Constitution,  Undoubted  reference 
to  the  system  of  slavery  is  made  in  three  places  in  the  instru- 
ment," but  each  time  by  a  euphemism.  The  13th  Amendment 
put  an  end  forever  to  a  social  system  that  for  nearly  a  century 
had  caused  more  trouble  within  the  United  States  than  almost 
anything  else.  It  had  stirred  up  political  bitterness  and  sec- 
tional strife,  which  culminated  in  the  costliest  war  in  history. 
Congress,  from  time  to  time,  had  legislated  around  and  about 
it ;  but  not  until  the  Picbellion  had  given  the  system  its  mortal 
hurt,  and  the  Chief  Executive  had  proclaimed  oflficially  against 
it,  were  the  people  sufficiently  united  to  end  it.  It  is  impossible 
in  this  book  to  go  extensively  into  the  history  of  slavery  and 
the  slave  trade,  but  the  following  brief  summary  presents  the 
most  important  steps  taken  by  the  government  in  the  matter. 

1.  In  1787  the  Continental  Congress,  in  the  Ordinance  for 
the  Government  of  the  Northwest  Territory,  forbade  slavery 
in  that  Territory. 

2.  In  179-1  Congress  prohibited  the  slave  trade  with  foreign 
nations. 

3.  In  1808  Congress  made  the  importation  of  slaves  un- 
lawful. 

4.  In  1820  Congress  declared  the  slave  trade  to  be  piracy. 

5.  In  1862  Congress  abolished  slavery  in  the  District  of 
Columbia  and  in  the  Territories. 

().  In  1863  President  Lincoln  issued  the  Emancipation 
Proclamation. 

"Constitution,  1,  2,  3;  1,  9,  1;  4,  2,  3. 
IS 


274  Constitutional  Law 

7.  In  1865  Congress  passed,  and  the  required  number  of  the 
States  ratified,  the  13th  Amendment. 

Involuntary  Servitude. — It  is  probable  that  the  13th  Amend- 
ment was  aimed  chiefly  at  negro  slavery,  but  the  phrase  "  in- 
voluntary servitude  "  is  broad  enough  to  include  any  system 
of  compulsory  service,  even  though  limited  to  a  term  of  years, 
such  as  the  padrone  system  common  in  Italy,  or  the  peonage 
system  in  Mexico.  Laws  that  allow  convicts  to  be  employed 
at  involuntary  labor  in  penitentiaries  are  not  unconstitutional, 
for  such  labor  is  part  of  "  a  punishment  for  crime,  whereof 
the  party  shall  have  been  duly  convicted."  But  the  constitu- 
tionality of  State  statutes  that  allow  convicts  to  be  let  out  on 
contract  to  the  highest  bidders  is  certainly  open  to  question. 

Power  to  Enforce. — Prohibitory  statutes  are  self -executing. 
The  present  amendment  therefore  hardly  needs  the  power  to 
enforce  it  given  in  the  2d  Clause  of  this  act.  Furthermore, 
under  the  theory  of  implied  powers,  a  theory  established 
years  before  this  amendment,  Congress  would  certainly  have 
power  to  legislate  in  this  matter. 

Article  14 

Section  1,  Clause  1. — All  persons  born  or  naturalized  in 
the  United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States  and  of  the  State  wherein 
they  reside.  No  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of  citi- 
zens of  the  United  States;  nor  shall  any  State  deprive 
any  person  of  life,  liberty,  or  property,  without  due 
process  of  law,  nor  deny  to  any  person  within  its  juris- 
diction the  equal  protection  of  tlie  laws. 

Citizens. — The  13th  Amendment  freed  the  slaves;  the  14th 
made  them  citizens.  It  did  more:  it  defined  citizenship,  stat- 
ing clearly  and  briefly  the  two  qualifications.  All  persons  horn 
or  naturalized  in  the  Uuitod  States,  and  suljrct  to  the  juris- 
diction  thereof,  are  citizens.    The  phrase  "  all  persons  "  in- 


Amexdmexts  to  the  Constitution  275 

eludes  men,  women,  and  children,  black  or  white,  and  of  every 
degree.  A  child  is  a  citizen  as  truly  as  a  man,  but  without  as 
many  political  privileges.  He  is  entitled  to  protection,  and 
we  may  say  that  he  owes  allegiance,  but  he  has  not  the  political 
privilege  of  voting.  Suffrage,  or  the  right  to  vote,  is  purely 
a  privilege;  citizenship  is  a  state  of  being — a  matter  of  acci- 
dent. A  child  bom  of  American  parents  in  the  United  States 
is  at  once  a  citizen,  whether  he  or  his  parents  wish  it  or  not. 
But  he  cannot  possess  suffrage  until  he  reaches  a  certain  age, 
and  the  State  where  he  resides  gives  it  to  him.  But  not  all 
children  born  within  the  United  States  are,  ipso  facto,  citizens. 
They  are  not,  unless  they  are  subject  to  the  jurisdiction  of  the 
United  States.  In  brief,  birth  and  jurisdiction  must  com- 
bine to  produce  a  citizen.  Perhaps  ninety-nine  per  cent  of 
the  children  born  in  the  United  States  are  at  once  citizens. 
The  small  per  cent  that  are  not  include  the  following : 

1.  Indians  whose  parents  are  not  wholly  subject  to  the  juris- 
diction of  the  United  States  by  reason  of  being  members  of 
Indian  tribes.  These,  however,  may  become  citizens  by  natu- 
ralization." 

2.  Chinese.     (See  citizens  by  naturalization,  below.) 

3.  Children  of  foreign  ambassadors,  and  otlior  public 
ministers,  temporarily  residing  in  the  United  States. 

4.  Children  of  aliens  having  temporary  residence  in  the 
United  States.  In  this  case  a  right  of  choice  is  recognized.  If 
the  child  remains  in  the  country  until  he  reaches  his  majority, 
he  may  claim  citizenship  by  birtli. 

Citizens  by  Naturalization. — Tlie  mode  of  naturalizing 
citizens  lias  been  already  explained  (see  page  96).  Any  alien, 
white  or  black,  may  become  a  citizen  of  the  United  States  by 
this  process,  unless  prevented  from  enter  inn  the  countr}'  on 
the  ground  of  pauperism,  or  disease,  or  criminality.  Although 
Chinese  cannot  be  naturalized,  the  children  of  Chinese  parents 

*  Elk  V.  Williams,  112  U.  S.,  94. 


276  Constitutional  Law  j 

who  reside  in  the  country  and  were  citizens  before  the  exclu- 
sion acts  were  passed,  or  who  have  a  permanent  residence  in 
the  United  States,  are  citizens." 

United  States  Citizenship. — It  was  maintained  by  many  il 

statesmen  during  the  half  century  and  more  preceding  the 
Civil  War  that  the  people  of  the  United  States  were  citizens 
of  States  only,  or  that  national  citizenship  resulted  entirely 
from  State  citizenship.  The  14th  Amendment  asserts  the 
opposite.  It  plainly  suggests  a  twofold  citizenship,  a  double 
allegiance.  "  Citizens  of  the  United  States  and  of  the  States 
wherein  they  reside  '^ ;  this  is  the  la.nguage,  and  if  it  means 
anything  it  is  that  an  American,  whether  such  by  birth  or  by 
naturalization,  is  first  a  citizen  of  the  United  States,  and 
second  a  citizen  of  that  State  wherein  he  maintains  his  resi- 
dence. It  is  impossible  to  be  a  citizen  of  a  State  and  not  of  the 
United  States;  but  it  is  not  impossible  for  a  citizen  of  the 
United  States  to  have  no  State  citizenship.  The  latter  is 
largely  a  matter  of  residence.  Many  members  of  the  army  and 
the  navy  have  no  residence  in  any  State.  They  are  citizens  of 
no  State ;  but  they  are  citizens  of  the  United  States.  Inhabi- 
tants of  the  Territories,  if  citizens  at  all,  are  citizens  of  the 
United  States,  but  of  no  State.  To  the  United  States  they  owe 
allegiance,  and  from  the  general  government  alone  may  de- 
mand protection. 

Privileg-es  and  Immunities. — The  provision  in  the  14th 
Amendment,  that  no  State  shall  abridge  the  privileges  and 
immunities  of  citizens  of  the  United  States,  affirms  expressly 
what  before  was  a  matter  of  implication  merely.  Since  the 
government  of  the  United  States  is  superior  to  that  of  the 
States,  it  necessarily  follows  that  privileges  and  immunities 
granted  by  the  United  States  are  beyond  the  reach  of  State 
legislation ;  and  any  unreasonable  abridgment  of  them  by  any 

*"  In  re  Look  Tin  Sing,  21  Fed.  Rep.,  905.  U.  S.  v.  Wong  Kim 
Ark,  169  U.  S.,  649. 


Amendments  to  the  Constitution  277 

State  is  at  once  illegal.  The  immediate  reason  for  stating 
this  and  the  other  restrictions  on  the  States  in  this  amend- 
ment was  to  insure  equality  of  protection  to  the  negroes  in 
the  several  States.  But  so  important  are  the  provisions,  and 
so  broad  their  application,  that  a  formal  statement  of  them 
is  almost  essential. 

What  are  these  privileges  and  immunities?  The  privileges 
are  such  as  naturally  go  with  Federal,  rather  than  State, 
citizenship.  A  State  may  not  even  restrict  its  own  citizens  in 
respect  to  privileges  conferred  by  the  United  States.  Among 
such  privileges  are  the  right  to  use  the  postal  service,  to  par- 
ticipate in  foreign  or  interstate  commerce,  to  use  the  navigable 
waters  of  the  United  States,  to  pass  unhampered  from  State 
to  State,  and  many  others.  The  privileges  of  course  suggest 
the  immunities.  The  case  of  Crandall  v.  Kevada,  6  Wall.,  35 
(1867),  is  somewhat  illustrative  of  these  principles. 

The  State  of  Nevada  passed  a  law  to  compel  the  owners  of  all 
railroad  and  stage  coach  lines  to  pay  a  tax  of  one  dollar  per 
head  on  all  passengers  transported  out  of  the  State.  Crandall, 
agent  for  a  stage  coach  line,  was  arrested  and  put  on  trial  for 
refusing  to  pay  the  tax.  The  court  in  this  case  held  that  the 
statute  was  inconsistent  with  the  doctrines  of  Federal  govern- 
ment and  the  rights  of  the  people.  The  United  States  may  re- 
quire the  services  of  the  citizens  at  the  seat  of  government  at 
any  time;  it  has  the  right  to  transport  troops  through  any 
State,  and  the  people  have  the  right  to  visit  the  seat  of  gov- 
ernment and  all  Federal  offices  in  the  States.  The  statute  of 
Nevada  interfered  with  these  rights.  The  power  to  tax  is 
unlimited.  If  any  State  could  levy  a  tax  of  one  dollar  per 
head  on  all  travelers  passing  through  it,  it  could  lay  a  tax 
of  one  thousand  dollars  per  head,  thus  practically  destroying 
the  rights  of  the  government  and  of  the  citizens  as  mentioned 
above. 

Liberty  and  Property. — Judicial  decisions  have  widened  the 
ordinary  meaning  of  these  terms.    Liberty  has  been  held  to  be 


278  Constitutional  Law 

more  than  freedom  from  restraint ;  property,  more  than  lands 
and  goods.  Thus  the  right  to  pursue  a  livelihood  or  calling, 
and  for  that  purpose  to  enter  into  such  contracts  as  may  be 
proper,  is  liberty  which  no  State  can  take  away  without  due 
process  of  law.  Property  may  be  both  tangible,  such  as  lands 
and  goods,  and  intangible,  such  as  debts,  franchises,  in- 
corporeal hereditaments,  and  the  right  to  labor.  Both  are 
within  the  scope  of  this  amendment. 

Due  Process  of  Law. — This  phrase  has  been  discussed  fully 
under  Amendment  5.  There  the  prohibition  is  on  Congress; 
here  it  is  on  the  States.  Most  State  constitutions  have  similar 
provisions.  We  may  add  this  here:  A  statute  is  not  neces- 
sarily due  process  of  law,  for  such  an  interpretation  would 
render  this  clause  of  the  amendment  nugatory.  Thus  an  act 
cannot  be  defended  as  due  process  of  law,  unless  the  statute 
authorizing  it  is  above  criticism ;  or  unless  sanctioned  by  age, 
custom,  or  established  authority. 

Equal  Protection  of  the  Laws. — In  general,  this  part  of  the 
14th  Amendment  is  a  prohibition  against  discriminating  laws. 
Although  enacted  primarily  for  the  benefit  of  the  colored 
people,  it  applies  to  all  irrespective  of  color.  Corporations  are 
persons  within  the  meaning  of  the  amendment";  so  also  are 
aliens''  and  Chinese'";  and  State  laws  that  deprive  them  of 
privileges  which  they  as  citizens  are  entitled  to  are  void.  Leg- 
islation is  not  contrary  to  the  amendment,  however,  if  all  per- 
sons subject  to  it  are  treated  substantially  alike  under  similar 
circumstances.  Accordingly,  a  State  may  establish  one  set  of 
laws  for  one  section,  a  different  set  for  another  section,  and 
the  arrangement  denies  to  no  one  equal  protection  of  the  laws, 
if  all  persons  are  treated  alike  under  the  laws  of  any  section. 

"Howe  Ins.  Co.  v.  New  York,  134  U.  S.,  594.     Gulf  R.  R.  Co.  v. 
Ellis,  165  U.  S.,  150. 
^In  re  Ah  Feng,  3  Sawyer  (U.  S.),  144. 
» In  re  Lee  Sing,  43  Fed.  Rep.  359. 


Amendments  to  the  Constitution  279 

The  prohibition  in  the  amendment  is  aimed  rather  against 
social,  racial,  or  class  distinctions.  To  illustrate:  a  statute 
denying  to  colored  people  the  privilege  of  sitting  on  a  jury  has 
been  held  to  be  a  denial  of  the  equal  protection  of  the  laws '" ; 
likewise,  a  law  excluding  colored  children  from  schools  " ;  and 
one  forbidding  corporations  to  employ  Chinese  or  Mongolians.** 
On  the  other  hand,  statutes  that  provide  separate  schools  for 
white  and  colored  children  do  not  discriminate  against  either 
class,  if  the  accommodations  for  each  are  substantially  equal  " ; 
neither  do  statutes  that  provide  separate  cars,  or  compart- 
ments, for  colored  passengers  on  railroad  lines  operating 
within  the  State."  In  respect  to  lines  operating  through 
several  States,  however,  such  a  statute  might  be  void  as  a  regu- 
lation of  commerce.*' 

Monopolies. — The  grant  by  a  State  of  exclusive  privileges 
creates  a  monopoly,  and  is  thus  an  infringement  on  equal 
rights.  Theoretically,  all  such  monopolies  should  be  banned 
by  the  14th  Amendment,  but  in  fact  they  are  often  justified 
on  the  ground  that  the  public  interests  are  best  served  by  con- 
fiding a  certain  business  to  one  person,  or  to  a  group  of  per- 
sons, rather  than  by  allowing  it  to  be  spread  about  among 
many.  Accordingly,  the  grant  of  the  exclusive  right  to  supply 
water  to  a  city,  or  to  slaughter  cattle  for  a  city  market,  doing 
so  impartially  to  all  who  apply,  is  not  unconstitutional.  Not 
every  monopoly  is  illegal,  but  only  those  that  are  unreason- 
able. The  reasonableness  of  a  thing  often  justifies  it  in  the 
eyes  of  the  law,  when  technically  it  is  illegal.    Hence,  it  has 

•»  Strauder  v.  West  Va.,  100  U.  S.,  303. 
«  State  V.  Duffy,  7  Nev.,  342. 
"  In  re  Parrott,  6  Sawyer,  349. 
"Ward  V.  Flood.  48  Cal.,  36. 

"The  Sue,  22  Fed.  Rep.,  843.  Murphy  i'.  Railroad,  23  Fed. 
Rep.,  637. 

"Hall  V.  De  Cuir,  95  U.  S.,  485. 


380  Constitutional  Law 

come  to  be  the  accepted  rule  that  even  private  monopolies,  so 
long  as  they  are  reasonable  in  their  scope,  are  justifiable.  As  a 
general  rule  a  monopoly  may  be  said  to  be  unreasonable  when 
it  ceases  to  serve  the  public  impartially — a  question  to  be 
settled  in  every  case  by  the  courts. 

The  Police  Power. — The  meaning  of  this  phrase  has  already 
been  discussed,  see  ayite  page  92.  A  State  may,  under  its 
police  power,  pass  many  acts  in  defiance  of  the  14th  Amend- 
ment, provided  the  general  welfare  of  the  people  require  them. 
Thus,  although  a  State  may  not  deprive  any  one  of  property 
without  due  process  of  law,  it  may  arbitrarily  cause  property 
to  be  removed  or  destroyed  that  is  dangerous  to  the  public 
health ;  and  it  may  prohibit  miners  to  work  in  mines  more  than 
a  certain  number  of  hours  per  day.  Both  of  these  are  depriva- 
tions of  property,  but  justified  under  the  police  power.  Again, 
although  a  State  may  not  deprive  any  person  of  the  equal  pro- 
tection of  the  laws,  it  may  compel  a  certain  business  or  trade 
to  be  carried  on  in  a  specified  way,  or  confine  it  to  a  limited 
area,  if  the  nature  of  it  demands  such  adverse  legislation." 
But  the  legislature  may  not,  under  the  guise  of  protecting 
public  interests,  arbitrarily  interfere  with  private  business, 
or  impose  unnecessary  and  unusual  restrictions  upon  lawful 
occupations.  Its  determination  of  what  is  lawful  in  the  exer- 
cise of  its  police  power  is  not  final,  but  subject  to  the  super- 
vision of  the  courts." 

Section  1,  Clause  2. — Representatives  shall  be  appor- 
tioned among  the  several  States  according  to  their  re- 
spective numbers,  counting  the  whole  number  of  persons 
in  each  State,  excluding  Indians  not  taxed.  But  when  the 
right  to  vote  at  any  election  for  the  choice  of  electors 
for  President  and  Vice  President  of  the  United  States, 
Representatives  in  Congress,  the  executive  and  judicial 

"  Slaughter  House  Cases,  16  Wall.,  36. 
"Lawton  v.  Steele,  152  U.  S.,  133,  137. 


Amendments  to  the  Constitution  281 

officers  of  a  State,  or  the  members  of  the  legislature 
thereof,  is  denied  to  any  of  the  male  inhabitants  of  such 
State,  being  twenty-one  years  of  age,  and  citizens  of  the 
United  States,  or  in  any  way  abridged,  except  for  partici- 
pation in  rebellion  or  other  crime,  the  basis  of  represen- 
tation therein  shall  be  reduced  in  the  proportion  which  the 
number  of  such  male  citizens  shall  bear  to  the  whole 
number  of  male  citizens  twenty-one  years  of  age  in  such 
State. 

"  Respective  Numbers." — According  to  Art.  1,  Sect.  2,  CI.  3, 
of  the  Constitution,  the  respective  numbers,  that  is,  the  popu- 
lation of  a  State,  should  be  ascertained  by  adding  to  the  free 
inhabitants,  excepting  Indians  not  taxed,  three-fifths  of  all 
other  persons.  But  with  the  abolition  of  slavery,  and  the  ac- 
ceptance of  the  14th  Amendment,  that  provision  became  a  dead 
letter.  The  respective  numbers  of  the  States  must  now  include 
all  persons,  excepting  Indians  not  taxed. 

Purpose  of  this  Clause. — The  purpose  of  this  clause  was  to 
secure  colored  citizens  in  their  right  to  vote.  Neither  the  Con- 
stitution nor  the  amendments  define  suffrage :  but  the  present 
clause  implies  that  normally  it  shall  be  in  the  hands  of  male 
citizens,  twenty-one  years  of  age.  When  the  slaves  were  freed, 
and  by  the  first  clause  in  this  amendment  were  made  citizens, 
they  became  at  once  eligible  to  the  suffrage.  For  fear  there- 
fore that  certain  States,  through  hatred  or  jealousy  of  former 
slaves,  or  of  their  descendants,  might  arbitrarily  deprive  its 
colored  male  citizens  of  their  right  to  vote,  Congress  added 
this  clause  to  the  14th  Amendment.  The  clause  does  not 
bestow  the  ballot  on  the  negro,  or  upon  anyone.  It  does  not 
refer  in  terms  to  the  colored  race.  It  simply  provides  that 
when  suffrage  is  restricted,  representation  in  Congress  shall 
also  be  restricted,  and  proportionately.  In  other  words,  it 
declares  that  no  State  shall  count  out  any  number  of  its  male 
citizens  in  making  up  its  electorate,  but  count  in  all  such 
citizens  for  the  purposes  of  population,  and  therefore  repre- 
sentation in  Confirress. 


283  Constitutional  Law 

Denial  of  Suffrage. — What  constitutes  a  denial  of  suffrage 
within  the  meaning  of  this  amendment?  Is  any  limitation  of 
the  right  to  vote  such  a  denial  ?  Probably  not.  To  demand,  as 
a  prerequisite  of  the  right  to  vote,  that  a  citizen  shall  pay  a 
poll  tax,  or  reside  in  the  county  and  be  registered  there,  or 
pass  a  fair  educational  or  property  test — these  are  not  gen- 
erally regarded  as  denials  of  suffrage.  They  are  reasonable 
and  flexible  limitations  within  the  power  of  any  man  to  over- 
come; they  create  no  class  distinctions  and  impose  no  special 
hardship.  A  denial,  as  understood  here,  must  be  something 
insurmountable  in  its  nature,  such  as  one  based  on  color, 
foreign  birth,  or  class'. 

Enforcement  of  this  Clause. — Although  certain  States  have 
been  accused  of  denying  to  many  of  their  colored  male  citizens, 
twenty-one  years  old  and  citizens  of  the  United  States,  the 
right  to  vote,  either  by  imposing  unreasonably  severe  restric- 
tions, or  by  the  tyranny  of  their  election  officials.  Congress 
has  never  yet  legislated  to  enforce  the  penalty  provided  by  this 
amendment.  It  has  perhaps'  recognized  that  to  do  so  would  be 
both  futile  and  dangerous,  and  until  there  occurs  an  open  and 
purposed  violation  of  this  clause,  it  is  probable  that  Congress 
never  will  so  legislate.  In  the  first  place,  it  would  be  very 
difficult  for  Congress  to  estimate  the  number  of  voters  denied 
the  ballot,  and  thus  be  able  to  make  any  proportionate  and 
accurate  reduction  in  representation ;  in  the  second  place,  the 
object  of  the  clause  has  been  better  gained  by  the  15th  Amend- 
ment; and  in  the  third  place,  the  clause  is  unjust,  for  its 
threat  includes  the  innocent  as  well  as  the  guilty  without 
discrimination,  and  is  so  in  the  nature  of  a  perpetual  menace 
as  to  be  a  constant  irritation  to  a  spirited  race.  For  these  and 
other  reasons,  the  14th  Amendment  has  been  severely  arraigned 
by  its  enemies,  and  even  its  friends  have  been  forced  to  admit 
that  its  passage  was  an  error.  Not  to  prohibit  an  act,  but  to 
allow  it  under  a  penalty,  does  not  seem  the  best  of  statesman- 
ship. 


Amendments  to  the  Constitution  283 

Section  1,  Clause  3. — No  person  shall  be  a  Senator  or 
Representative  in  Congress,  or  elector  of  President  and 
Vice  President,  or  liold  any  office,  civil  or  military,  under 
the  United  States,  or  under  any  State,  who,  having 
previously  taken  an  oath,  as  a  member  of  Congress,  or  as 
an  officer  of  the  United  States,  or  as  a  member  of  any 
State  legislature,  or  as  an  executive  or  judicial  officer  of 
any  State,  to  support  the  Constitution  of  the  United 
States,  shall  have  engaged  in  insurrection  or  rebellion 
against  the  same,  or  given  aid  or  comfort  to  the  enemies 
thereof.  But  Congress  may,  by  a  vote  of  two-thirds  of 
each  House,  remove  such  disability. 

Clause  3  of  the  14th  Amendment  has  only  historic  interest 
to-day.  Its  purpose  was  to  debar  from  public  office  all  who 
had  taken  up  arms  against  the  government.  Shortly  after  its 
passage,  Congress  began  in  individual  cases  to  remove  the 
disability  created  by  it,  and  in  1898,  by  special  act,  it  removed 
all  such  disabilities  outstanding.  AlthouL!;h  the  clause  has  no 
force  to-day,  the  prohibition  in  it  would  revive  in  the  event 
of  another  rebellion. 

Section  1,  Clause  4. — The  validity  of  the  public  debt  of 
the  United  States,  authorized  by  law,  including  debts  in- 
curred for  payment  of  pensions  and  bounties  for  services  in 
suppressing  insurrection  or  rebellion,  shall  not  be  ques- 
tioned. But  neither  the  United  States  nor  any  State  shall 
assume  or  pay  any  debt  or  obligation  incurred  in  aid  of  in- 
surrection or  rebellion  against  the  United  States,  or  any 
claim  for  the  loss  or  emancipation  of  any  slave;  but  all 
such  debts,  obligations,  and  claims  shall  be  held  illegal 
and  void. 

Section  1,  Clause  5. — The  Congress  shall  have  power 
to  enforce,  by  appropriate  legislation,  the  provisions  of 
this  article. 

The  Public  Debt. — The  immediate  purpose  of  this  clause  in 
the  l-ltli  Amendment  was  to  pledge  the  payment  of  all  lawful 
debts  incurred  in  putting  down  the  Eebellion;  but  the  Ian- 


284  Constitutional  Law 

guage  is  broad  enough  to  include  public  debts  whenever  they 
may  be  made.  The  principle  expressed  in  the  first  sentence  is 
the  same  as  that  already  discussed  under  Article  6,  Section  1. 

War  Claims;  Void  Debts. — No  nation  can  be  expected  to 
make  compensation  to  its  enemies  for  losses  occasioned  by  war. 
Such  losses  are  the  fortunes  that  follow  unsuccessful  strife. 
All  debts  incurred  in  the  aid  of  unsuccessful  rebellion  are  un- 
collectable,  and  all  such  contracts  are  void.  These  rules  are 
unpleasant;  but  so  is  rebellion,  and  the  government  cannot 
be  expected  to  indemnify  those  who  bring  the  unpleasantness 
about.  Since  the  Civil  War  bills  have  been  presented  in  Con- 
gress to  pension  Southern  soldiers  or  their  widows,  or  to  com- 
memorate Southern  heroism,  but  as  yet  none  of  these  has 
passed.  It  is  doubtful  if  such  bills,  should  they  become  laws, 
could  be  regarded  as  constitutional  in  the  face  of  this  amend- 
ment. 

The  prohibition  regarding  slave  property  cannot  be  regarded 
as  altogether  equitable,  for  many  loyal  owners'  as  well  as  the 
disloyal  owners  suffered  the  loss  of  their  slave  property,  and 
their  losses  cannot  be  said  to  have  been  incurred  in  aid  of 
insurrection.  But  it  was  felt  at  the  time  of  the  passage  of  the 
amendment  that,  since  slavery  was  largely  the  cause  of  the  war 
and  its  attendant  calamities,  its  destruction  was  the  destruc- 
tion of  a  public  enemy,  and  that  no  just  claim  should  arise 
from  it.  Mrs.  Alexander's  Cotton,  2  Wall.,  417,  is  a  case  in 
point.  In  May,  1864,  a  party  from  the  Ouachita,  a  gunboat 
belonging  to  Admiral  Porter's  expedition  on  the  Red  River, 
captured  72  bales  of  cotton  belonging  to  Mrs.  Alexander,  which 
were  then  stored  in  a  gin  one  mile  from  the  river.  The  cotton 
was  confiscated  and  sold  by  the  Federal  government.  After 
the  war  Mrs.  Alexander  sued  the  purchasers  in  the  District 
Court  for  the  value  of  the  cotton.  Mrs.  Alexander  maintained 
that  she  had  been  loyal  to  the  United  States  through  tlie  war. 
The  court  held:  (1)  that  since  cotton  was  tlie  main  reliance 


Amendments  to  the  Constitution  285 

of  the  South  for  securing  means  to  prosecute  the  war  it  was 
contraband,  and  hence  liable  to  confiscation;  (2)  that  contra- 
band goods  belonging  to  loyal  people  residing  among  the 
enemy  were  not  to  be  distinguished  from  enemy's  property. 

Article  15 

Section  1,  Clause  1. — The  right  of  citizens  of  the  United 
States  to  vote  shall  not  be  denied  or  abridged  by  the 
United  States,  or  by  any  State,  on  account  of  race,  color, 
or  previous  condition  of  servitude. 

Section  1,  Clause  2. — The  Congress  shall  have  power  to 
enforce  this  article  by  appropriate  legislation. 

Why  Adopted. — The  loth  Amendment,  like  tlic  13th  and 
the  14th,  was  ado])tcd  during  the  unsettled  period  that  fol- 
lowed the  Civil  War.  Its  purpose  was  twofold :  first,  to  prosper 
the  nation — for  it  was  thought  at  the  time  that  the  presence 
in  the  South  of  so  large  a  body  of  f  reedmen  lacking  the  political 
privileges  of  other  citizens  would  be  a  constant  source  of  dis- 
content and  consequent  danger  to  the  country ;  second,  to  pro- 
tect the  colored  man  in  his  political  rights — for  it  was  mani- 
festly the  duty  of  the  general  government,  having  freed  the 
negro  and  given  him  citizenship,  to  secure  to  him  the  suffrage 
which  that  status  had  opened  to  him.  For  the  latter  reason 
the  second  clause  in  the  14th  Amendment  had  been  adopted, 
but  that  having  failed  in  its  object,  the  15th  Amendment  was 
proposed  and  ratified. 

What  the  Amendment  Does. — The  15th  Amendment  does 
not  confer  the  right  to  vote  on  the  negro  or  anybody  else.  That 
riglit  comes  to  a  citizen  only  by  State  laws  and  processes.  The 
amendment  is  intended  to  prevent  discrimination  in  popular 
suffrage  on  account  of  race,  color,  or  previous  condition  of 
servitude.  The  language  is  plain,  offering  little  or  no  room 
fo-r  quibbling.  Though  passed  obviously  as  a  protective  meas- 
ure for  the  colored  people  in  the  United  States,  it  is  sweeping 


286  Constitutional  Law 

enough  in  its  terms  to  include  citizens  of  every  race.  There 
has  been  little  litigation  over  this  amendment,  and  Congress' 
has  not  yet  been  called  on  to  enforce  it  by  appropriate  legis- 
lation. Indeed,  the  amendment  is  self-executing,  since  any 
State  or  Federal  statute  that  denies  or  abridges  the  right  of 
citizens  of  the  United  States  to  vote  on  account  of  race,  color, 
or  servitude,  is  unconstitutional,  and  may  be  declared  void 
by  any  court. 

Power  of  States  Narrowed. — The  10th  Amendment  declares 
that  "  The  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved 
to  the  States  respectively,  or  to  the  people."  Previous  to  the 
adoption  of  the  15th  Amendment,  Congress  possessed  no  power 
to  legislate  respecting  State  elections.  That  was  reserved  to 
the  States  respectively,  or  to  the  people,  since  the  Constitution 
did  not  confer  it  on  the  United  States,  or  prohibit  it  to  the 
States.  But  with  the  passage  of  the  15th  Amendment  Congress 
obtained  such  power.  In  this  respect  therefore  the  power  of 
the  Federal  government  was  augmented  slightly  at  the  expense 
of  the  States. 

Article  16 

The  Congress  shall  have  power  to  lay  and  collect  taxes 
on  incomes,  from  whatever  source  derived,  without  ap- 
portionment, among  the  several  States,  and  without  re- 
gard to  census  or  enumeration. 

In  1894,  the  student  will  remember,  the  Supreme  Court 
ruled  that  income  taxes  were  direct  taxes,  and  that,  since  the 
income  tax  law  of  that  year  did  not  provide  for  levying  the 
tax  according  to  population,  it  was  unconstitutional  and  void. 
The  decision  in  effect  prohibited  Congress  from  ever  again  im- 
posing an  income  tax,  for  it  is  next  to  impossible  to  apportion 
such  a  tax  according  to  representation.  Incomes,  however, 
have  long  been  deemed  proper  subjects  for  taxation,  and  it  was 


Amendments  to  the  Constitution  287 

considered  very  unfortunate  that  Congress  should  be  deprived 
of  that  great  source  of  revenue.  Partly,  therefore,  to  enable 
Congress  to  obtain  revenue  from  that  source,  and  partly  to 
satisfy  a  growing,  insistent  demand  that  the  swollen  fortunes 
of  the  wealthy  be  made  to  contribute  more  directly  to  the 
public  expense.  Congress  finally  proposed  the  present  amend- 
ment. The  clause  was  introduced  at  the  first  session  of  the 
Gist  Congress.  It  passed  the  Senate  July  5,  1909,  by  a  unani- 
mous vote;  it  passed  the  House,  July  12,  by  a  vote  of  317  to 
14,  and  was  later  approved  by  the  President.  It  was  submitted 
at  once  to  the  legislatures  of  the  several  States.  In  January, 
1913,  having  been  ratified  by  three-fourths  of  the  States,  it 
became  an  integral  part  of  the  Constitution. 

This  amendment  settles  forever  a  perplexing  question.  It 
makes  no  difTcrence  now  whether  we  regard  income  taxes  as 
direct  or  indirect  so  far  as  their  availability  for  purposes  of 
revenue  is  concerned.  Congress  may  now  tax  incomes,  with- 
out apportionment,  and  without  regard  to  census  or  enumera- 
tion. Until  Congress  acts  under  this  power,  however,  and  the 
courts  interpret  whatever  questions  may  arise  under  such  acts, 
it  is  impossible  even  to  suggest  the  possible  limitations  to  this 
addition  to  the  Constitution. 

Income  Tax  Law. — The  first  income  tax  law  under  the  IGih. 
Amendment  was  passed  during  the  special  session  of  Congress 
convened  by  President  Wilson  in  the  spring  of  1913.  This 
law  calls  for  the  assessment  of  a  graduated  tax  on  all  incomes, 
from  whatever  source  derived,  above  $3000  per  annum  as  fol- 
lows :  On  incomes  above  $3000  per  annum  and  not  exceeding 
$20,000,  a  tax  of  one  per  cent:  on  incomes  above  $20,000  and 
not  exceeding  $50,000,  a  tax  of  two  per  cent ;  on  incomes  above 
$50,000  and  not  exceeding  $75,000,  a  tax  of  three  per  cent; 
on  incomes  above  $75,000  and  not  exceeding  $100,000,  a  tax  of 
four  per  cent;  and  on  all  incomes  exceeding  $100,000,  a  tax 
of  five  per  cent. 


288  Constitutional  Law 

Every  resident  within  the  United  States,  whether  citizen  or 
not,  and  every  citizen  of  the  United  States,  whether  residing 
at  home  or  ahroad,  is  liable  to  this  tax.  Every  person  thus 
liable  is  required  annually  to  make  a  true  return  of  his  total 
net  income  from  all  sources  during  the  preceding  calendar 
year  to  the  Commissioner  of  Internal  Revenue,  under  rules 
prescribed  by  him  and  approved  by  the  Secretary  of  the 
Treasury.  Failure  to  make  such  true  return  is  made  punish- 
able under  hea\7  penalties. 

Exemptions. — Certain  exemptions  and  deductions  are  al- 
lowed by  the  income  tax  law  as  follows : 

1.  Incomes  from  State  and  municipal  bonds  and  obliga- 
tions of  the  United  States  are  not  taxable ;  nor  are  the  salaries 
of  the  President,  United  States  Judges,  or  of  State  or  mu- 
nicipal officers. 

2.  All  persons  are  entitled  to  the  minimum  exemption  of 
$3000 ;  but  a  married  man  living  with  his  wife,  or  a  married 
woman  living  with  her  husband,  is  allowed  a  further  exemption 
of  $1000,  provided  that  the  said  wife  or  husband  has  not  also 
a  taxable  income.  In  no  case,  however,  is  the  exemption 
allowed  to  both  husband  and  wife  at  the  same  time. 

3.  Every  person  in  making  out  his  return  of  net  yearly 
income  for  assessment  may  deduct  from  his  gross  income 
(a)  all  necessary  business  expenses,  not  including  living  and 
family  expenses;  (b)  all  interest  on  indebtedness;  (c)  all 
national.  State,  county,  and  municipal  taxes  paid  within  the 
year;  (d)  all  losses  sustained  during  the  year  and  not  covered 
by  insurance;  (e)  all  debts  and  claims  charged  off  as  worth- 
less; (f)  a  reasonable  amount  for  wear  and  tear  of  property 
in  use;  (g)  dividends  on  stock  in  corporations  which  are  them- 
selves subject  to  the  tax;  and  (h)  all  incomes  already  taxed  at 
the  source.  By  the  last  is  meant  income  derived  from  interest 
on  bonds,  mortgages,  deeds  of  trust,  etc. 

It  is  idle  at  this  date  (1913)  to  speculate  on  the  validity  and 


Amendments  to  the  Conptitition  289 

usefulness  of  this  law.  On  its  face,  however,  it  appears  to  be  a 
reasonable  enactment,  which  while  making  available  for  taxa- 
tion sources  of  revenue  that  have  hitherto  been  exempt,  at  the 
same  time  is  very  liberal  in  its  exemptions.  It  is  the  hope  of 
its  framers  that  the  law  will  provide  revenue  enough  to  more 
than  make  up  for  possible  losses  from  reductions  in  the  tariff, 
besides  distributing  the  burden  of  Federal  taxation  more 
equitably  than  has  hitherto  been  thought  to  be  the  case. 

Article  17 

The    17th    Amendment    has    already    been    discussed    on 
page  46. 


19 


CHAPTER  IX 

LEADING  CASES 


LEADING  CASES 

1 

Van  Brocklin  v.  Tennessee,  117  U.  S.,  151  (1886) 

Certain  lots  of  land  in  the  city  of  Memphis,  Tenn.,  were 
sold  to  the  United  States  for  non-payment  of  direct  taxes. 
After  a  lapse  of  several  years  the  former  owners  redeemed  the 
land  from  the  government.  Whereupon,  the  State  of  Tennes- 
see made  formal  demand  on  the  owners  (Van  Brocklin  and 
others)  for  taxes  due  on  the  lots  in  the  interim.  The  case  was 
first  tried  in  a  State  court,  which  decided  that  the  tax  was 
collectable.  Van  Brocklin  then  carried  the  case  before  the 
U.  S.  Supreme  Court,  which  reversed  the  decision.    Why? 

2 

Fort  Leavenworth  E.  R.  v.  Lowe,  114  U.  S.,  525  (1885) 
The  State  of  Kansas  ceded  to  the  United  States  exclusive 
jurisdiction  over  the  land  occupied  by  the  Fort  Leavenworth 
Military  Reservation,  "  saving  to  the  State  the  right  to  tax 
railroad,  bridge,  or  other  corporations  on  said  property." 

The  plaintiff,  a  corporation  organized  under  the  laws  of 
Kansas,  was  the  owner  of  a  railroad  in  the  reservation,  and 
was  taxed  therefor  by  the  board  of  assessors  of  the  State.  The 
corporation  paid  the  tax  under  protest,  and  then  brought  suit 
to  recover  the  money  paid,  on  the  ground  that  since  the  prop- 
erty was  entirely  within  the  reservation  it  sliould  be  exempt 
from  taxation  by  the  State.  What  are  the  rights  of  the  parties 
concerned  ? 

3 

Transportation  Co.  v.  Wheeling,  99  U.  S.,  273  (1878) 

The  Wheeling  Transportation  Company,  whose  home  port 
and  principal  offices  were  at  Wheeling,  operated  boats  run- 
ning to  various  ports  up  and  down  the  Ohio  River.     These 


294  Constitutional  Law 

boats  were  licensed  under  acts  of  Congress  to  engage  in  the 
(i^oasting  trade.  The  city  of  Wheeling  laid  a  tax  on  these 
vessels  as  personal  property  in  the  city.  The  company  refused 
to  pay  the  tax,  holding  that  it  was  an  unwarranted  regula- 
tion of  interstate  commerce,  and  therefore  unconstitutional. 
How  would  you  decide  this  ? 


Packet  Company  v.  Keokuk,  95  U.  S.,  80  (1877) 

A  packet,  or  steamboat  company,  engaged  in  interstate 
commerce,  and  duly  licensed  by  Congress  to  engage  in  the 
coasting  trade,  refused  to  pay  fees  to  the  city  of  Keokuk  for 
the  privilege  of  using  the  city  wharves,  maintaining  that  the 
fees  were  in  effect  a  burden  on  interstate  commerce,  and  that 
the  law  imposing  them  was  null  and  void.  How  would  you 
decide  this  ? 

5 

Veazie  v.  Moore,  14  Howard,  568  (1852) 

The  State  of  Maine  granted  to  Moor  and  others  the  ex- 
clusive right  of  navigating  the  Penobscot  Eiver  above  Bangor. 
It  was  impossible  to  navigate  a  vessel  into  these  waters  from 
below  because  of  natural  obstructions  in  the  stream.  Veazie, 
being  sued  by  Moor  for  running  a  steamboat  on  the  water 
above  Bangor  in  contravention  of  the  statute,  set  up  the  fol- 
lowing defense :  1st,  that  he  had  a  Federal  license  to  engage 
in  the  coasting  trade;  2d,  that  the  Maine  statute  was  uncon- 
stitutional, since  it  amounted  to  a  regulation  of  commerce. 
Ought  the  court  to  regard  this  defense  good  ? 

G 

McEeady  v.  Virginia,  94  U.  S.,  391  (1876) 

A  law  of  Virginia  made  it  illegal  for  anyone  not  a  citizen 
of  Virginia  to  plant  oysters  in  the  tidal  waters  of  that  State. 
McEeady,  a  citizen  of  Maryland,  was  arrested  and  tried  for 


Leading  Cases  295 

violation  of  this  law.  His  defense  was  that  the  law  was  un- 
constitutional, being  in  violation  of  Article  1,  Section  8, 
Clause  3 ;  Article  14,  Section  1.  It  is  established  law  that  each 
State  owns  the  beds  of  tidal  waters  within  its  jurisdiction. 


Kelly  v.  Ehoads,  188  U.  S.,  1  (1902) 

Ehoads,  tax  collector  for  Laramie  County,  Wyo.,  collected 
from  Kelly  $250  in  taxes  on  a  herd  of  sheep.  The  sheep  were 
oeing  driven  across  Wyoming  from  Utah  to  Nebraska,  sup- 
porting themselves  on  the  way  by  grazing.  A  statute  of 
Wyoming  authorized  the  taxing  of  live  stock  brought  into  the 
State  for  the  purpose  of  grazing.  Kelly  sued  to  recover  the  tax 
on  the  ground  that  the  law,  as  applied  to  him,  was  void  as  a 
regulation  of  commerce. 

8 

Geer  v.  Connecticut,  161  U.  S.,  519  (1896) 

The  plaintiff,  indicted  for  violating  a  statute  of  Connecticut 
which  forbade  the  killing  of  game  for  the  purpose  of  trans- 
portation out  of  the  State,  or  having  it  in  possession  for  that 
purpose,  set  up  as  his  defense  that  the  statute  was  unconstitu- 
tional, being  an  unreasonable  regulation  of  interstate  com- 
merce, besides  unduly  depriving  him  of  his  property, 

9 

Minnesota  v.  Barber,  136  U.  S.,  313  (1889) 

Barber,  a  dealer  in  fresh  meats,  was  convicted  before  a 
Minnesota  court  of  violating  a  statute,  which  forbade  the  sale 
of  any  fresh  beef,  veal,  mutton,  pork  or  lamb,  that  had  not  been 
inspected  before  slaughter  by  an  inspector  within  the  State. 
Barber  maintained  tliat  the  statute  in  question  was  unconsti- 
tutional, and  liis  conviition  therefore  illegal.     Was  he  rii2:ht? 


296  Constitutional  Law 

"What  constitutional  principles  apply?     What  writ  would  be 
available  to  secure  for  him  an  immediate  hearing? 

10 

United  States  v.  Wong  Kim  Ark,  169  U.  S.,  649  (1897) 

Wong  Kim  Ark  was  born  in  1873  of  Chinese  parents  domi- 
ciled in  San  Francisco.  On  returning  from  a  visit  to  China 
he  was  refused  permission  to  land  in  the  United  States,  on 
the  ground  that  he  was  not  a  citizen  of  this  country.  Previous 
to  this  time  he  had  lived  in  San  Francisco  21  years.  What 
should  be  the  decision  in  this  case  ? 

11 

Elk  v.  Williams,  112  U.  S.,  94  (1884) 

Elk,  the  complainant,  brought  suit  against  W^illiams  be- 
cause the  latter,  as  registrar  of  voters  in  Omaha,  Nebraska, 
had  refused  to  register  him  as  a  qualified  voter.  Elk  stated 
that  he  was  an  Indian  born  in  the  United  States,  but  had 
voluntarily  severed  all  tribal  relations  and  had  become  a  bona 
fide  resident  of  the  city  of  Omaha,  State  of  Nebraska;  that 
under  the  14th  Amendment,  therefore,  he  was  a  citizen  of  the 
United  States,  and  entitled  to  all  privileges  as  such.  How 
would  you  decide  this  case  ? 

12 

United  States  v.  Villato,  2  Dallas,  370  (1797) 

Francis  Villato,  a  citizen  of  Spain,  moved  in  1793  from 
Louisiana  to  Philadelphia,  where  he  subsequently  swore  alle- 
giance to  the  State  of  Pennsylvania,  and  became  according  to 
the  existing  requirements  a  bona  fide  resident  of  that  State. 
Some  years  later  he  took  service  with  the  French  against  the 
United  States  and  was  captured  while  in  command  of  a  prize 
brig.  He  was  tried  for  treason,  as  having  levied  war  ajrainst 
the  United  States  and  adhered  to  their  enemies.  He  was 
acquitted.    Why? 


Leading  Cases  297 

13 
Parker  v.  Davis,  12  Wallace,  79  TJ.  S.,  461  (1870) 

Parker  promised,  in  jiayment  of  a  eertain  sum  of  lawful 
money,  to  convey  a  lot  of  land  to  Davis.  Later  he  refused  to 
execute  the  contract.  Whereupon,  the  case  being  brought  to 
the  Massachusetts  Supreme  Court,  1867,  Davis  was  ordered 
to  pay  into  court  the  sum  promised  and  Parker  to  execute 
the  deed  for  the  land.  Davis  paid  into  court  the  sum  named 
in  notes  of  the  United  States,  known  as  "  greenbacks."  Parker 
then  refused  to  execute  the  deed  on  the  ground  that  he  was 
entitled  to  have  the  sum  in  coin.  Was  the  latter's  position 
good? 

14 

Fox  V.  Ohio,  5  Howard,  46  U.  S.,  410  (1847) 

Malinda  Fox,  for  the  offense  of  passing  counterfeit  cur- 
rency in  the  State  of  Ohio,  was  convicted  in  the  highest  courts 
of  that  State.  She  appealed  her  case  to  the  United  States 
Supreme  Court,  on  the  ground  that  the  offense  with  which  she 
was  charged  was  national  in  character,  and  that  the  courts  of 
the  State  of  Ohio  did  not  have  jurisdiction  over  it.  How 
would  you  decide  this  ? 

15 
Wheatox  v.  Peters  et  al,  8  Peters,  223  (1834) 

Wheaton,  author  of  12  volumes  of  cases  decided  by  the 
Supreme  Court,  sued  Peters  et  al.  to  recover  damages  for  pub- 
lishing a  volume  entitled,  "  Condensed  Eeports  of  Cases  in 
the  Supreme  Court,"  which  contained  among  others  all  the 
cases  in  the  first  volume  of  Wheaton's  reports,  in  violation  of 
the  complainant's  copyright.  Wheaton  claimed  (1)  a  common 
law  right  in  his  own  published  works;  (2)  a  copyright  in  them 
under  the  statutes  of  the  United  States.  The  fact  was  brought 
out,  however,  that  he  had  failed  to  conform  to  the  law  of  1790 


398  Constitutional  Law 

(Stat,  at  Large,  124),  requiring  an  applicant  for  copyright  to 
give  public  notice  of  his  work  in  the  newspapers,  and  to  de- 
posit a  copy  of  it  in  the  Department  of  State. 

16 
Diamond  Match  Co.  v.  Ontonagon,  188  U.  S.,  S2  (1902) 

The  complainant  company  floated  logs  down  the  Ontonagon 
Eiver  to  the  village  of  Ontonagon,  where  they  kept  them  in 
boom,  shipping  them  out  from  time  to  time  as  required.  The 
defendant,  tax  collector  for  the  village  of  Ontonagon,  levied 
a  tax  on  these  logs.  Thereupon  the  complainant  filed  a  bill 
in  equity  to  restrain  the  collection  of  the  tax  on  the  following 
grounds :  1st,  that  it  was  a  tax  on  exports ;  2d,  that  it  was  a 
burden  on  interstate  commerce,  since  the  logs  were  shipped 
out  of  the  State.  Do  you  think  the  complainant's  position 
good? 

17 

Cornell  v.  Coyne,  192  U.  S.,  418  (1903) 

A  Federal  statute  provided :  "  That  upon  all  filled  cheese 
which  shall  be  manufactured  there  shall  be  assessed  and  col- 
lected a  tax  of  one  cent  per  pound,  to  be  paid  by  the  manu- 
facturer thereof."  The  plaintiff  protested  this  tax  on  the 
ground  that  the  cheese  which  he  manufactured  was  intended 
for  export  and  under  the  Constitution  was  exempt  from  taxa- 
tion.   Was  his  position  good  ? 

18 
U.  S.  V.  Smith,  5  Wheaton,  597  (1820) 

Smith  and  others,  part  of  the  crew  of  a  private  armed 
vessel  (commissioned  by  Buenos  Ayres,  then  at  war  with 
Spain),  mutinied,  left  their  vessel  in  Margaritta,  and  seized 
by  violence  a  ship  called  the  Irrestible,  a  private  vessel  com- 
missioned by  the  government  of  Artigas,  also  at  war  with 


Leading  Cases  299 

Spain.  Thoy  then  proceeded  to  sea  without  documents  or 
commission,  and  in  1819  plundered  a  Spanish  ship  on  the 
high  seas.  Later  they  were  indicted  before  the  Circuit  Court 
for  the  District  of  Virginia  for  the  crime  of  piracy.  Their 
defense  was:  that  since  Congress  had  not  yet  defined  piracy, 
they  could  not  be  punished  for  piracy;  that  before  the  Federal 
courts  could  punish  an  act  as  a  crime,  Congress  must  first 
define  the  act  to  be  a  crime.  They  based  their  contention  on 
Article  1,  Section  8,  Clause  10. 

19      "- 

Holmes  v.  Jennison,  14  Peters,  540  (1840) 

Holmes,  a  Canadian,  fled  from  arrest  in  Canada  and  took 
refuge  in  the  State  of  Vermont.  Here  he  was  arrested  by  the 
autliority  of  the  Governor  of  the  State  of  Vermont  and  held 
for  the  action  of  Canadian  officials.  He  applied  for  a  writ  of 
habeas  corpus  on  the  ground  that  the  act  of  the  Governor  was 
unconstitutional.  Should  it  have  been  so  regarded  by  the 
court? 

20 

Sturgis  V  Crowningshield,  4  Wheato^t,  122  (1819) 

The  defendant  in  this  case  had  made  two  promissory  notes 
due  in  August,  1811.  He  did  not  pay,  and  when  sued  in  1817 
for  the  debt  he  set  up  as  defense  the  fact  that,  under  a  statute 
passed  in  1812  by  the  State  of  Xew  York,  he  had  passed 
through  bankruptcy  and  was  discharged  from  all  liability. 
He  offered  in  court  the  certificate  of  discharge  from  all  debts, 
dated  1812. 

21 

CuMMiNGs  V.  State  orMissorRT,  9  "Wall.,  323  (1866)' 
An  amendment  to  tlie  constitution  of  the  State  of  Missouri, 
adopted  in  1SG5,  forbade  any  person  to  act  as  professor  or 
teacher  in  anv  educational  institution  within  the  State  without 


300  Constitutional  Law 

first  taking  a  prescribed  oath  that  he  had  never  been  in  armed 
hostility  to  the  United  States.  The  Eev.  Mr.  Cummings 
was,  soon  after  the  adoption  of  this  amendment,  indicted  and 
convicted  in  a  Missouri  court  for  the  crime  of  teaching  and 
preaching  without  having  taken  the  prescribed  oath,  and  was 
fined  $500.  The  case  was  taken  to  the  U.  S.  Supreme  Court 
on  writ  of  error,  and  that  court  declared  the  Missouri  statute 
unconstitutional  and  void.    On  what  grounds  ? 

Mormon  Church  v.  United  States,  136  U.  S.,  1  (1890) 
The  charter  granted  in  1851  by  the  Territory  of  Utah  to 
the  Church  of  Latter  Day  Saints  was  repealed  by  act  of  Con- 
gress in  1887.  When  proceedings  were  instituted  by  the 
United  States  to  enforce  this  act  the  corporation  resisted  on 
the  ground  that  the  act  was  unconstitutional.  How  would 
you  decide  this  case  ? 

23 
Morgan  S.  S.  Co.  v,  Louisiana  Board  of  Health,  118  U.  S., 
455  (1886) 
A  statute  of  Louisiana  allowed  the  resident  physician  on 
the  Mississippi  Eiver  the  following  fees  for  the  inspection  of 
vessels  entering  the  ports  of  that  State:  $30  for  a  ship;  $20 
for  a  bark;  $10  for  a  schooner,  etc.  The  plaintiff  company 
resisted  the  payment  of  the  fees,  maintaining : 

1.  That  the  law  imposed  a  tonnage  tax  and  was  void. 

2.  That  it  was  void  as  a  regulation  of  commerce. 

3.  That  it  was  repugnant  to  Article  1,  Section  9,  Clause  6. 

34 

OwiNGS  V.  Speed,  5  Wheaton,  688  (1820) 

In  1780  the  State  of  Virginia  granted  to  Bard  and  Owings 

a  tract  of  1000  acres  of  land,  on  which  the  town  of  Bardstown 

was  later  laid  off.    In  1788  the  Virginia  legislature  vested  100 

acres  of  this  land  in  trustees  to  be  laid  off  in  lots.    Thereupon 


Leading  Cases  301 

Owings  RUcd  Speed,  one  of  the  tni.«tccs,  on  the  ground  that 
the  act  of  1788  was  unconstitutional  as  impairing  the  obliga- 
tion of  contracts. 

Hawker  v.  Xew  York,  ITO  U.  S.,  189  (1898) 

In  1893  the  legislature  of  Xew  York  enacted  that  any  per- 
son who  should  practice  medicine  after  conviction  of  a  felony 
should  be  fined  accordingly.  Hawker,  who  had  been  con- 
victed in  1878  of  a  statute  felony  was  indicted  in  1896  for 
violating  this  enactment.  He  maintained  that  the  law,  at 
least  in  respect  to  himself,  was  ex  pod  facto.  Can  this  case 
be  distinguished  from  ex  parte  Garland?    See  pp.  144,  145. 

26 
Almy  v.  State  of  California,  24  Howard,  169  (1860) 
The  State  of  California  enacted  a  law  requiring  a  stamp  to 
be  placed  on  all  bills  of  lading  of  gold  shipped  out  of  the  State. 
The  plaintiff  refused  to  buy  and  affix  the  required  stamps, 
holding  that  the  law  was  unconstitutional.  Was  his  position 
correct?    The  California  courts  upheld  the  statute. 

27  ' 
Peete  v.  Morgan,  19  Wallace,  581  (1873) 
The  State  of  Texas  established  quarantine  stations  at 
various  Texas  ports,  and  enacted :  "  That  every  vessel  arriving 
at  a  port  having  such  quarantine  station  should  pay  a  fee  for 
the  support  of  the  same,  of  $5.00  for  the  first  100  tons  and 
1^  cents  for  every  additional  ton."  Morgan,  a  ship  owner  in 
Louisiana,  engaged  in  transportation  business  with  Texas 
ports,  refused  to  pay  the  tax,  and  brought  bill  to  enjoin  Peete, 
the  collector  of  the  taxes,  from  collecting  any  more  fees  under 
that  statute.  The  Court  granted  the  injunction,  holding  that 
the  Texas  law  was  unconstitutional.  Why?  Would  it  be 
possible  to  lay  a  tax  for  the  purpose  that  would  be  constitu- 
tional ? 


302  Constitutional  Law 

2S 
In  re  Green,  134  U.  S.,  377  (1890) 

Charles  Green,  disfranchised  by  the  laws  of  Virginia  for 
petty  larceny,  was  imprisoned  by  order  of  the  city  court  of 
Manchester,  Va.,  for  knowingly  voting  at  an  election  for  the 
presidential  electors.  He  sued  out  a  writ  of  habeas  corpus  on 
the  ground  that  his  act,  if  an  offense  at  all,  was  an  offense 
against  the  Federal  government,  and  hence  not  triable  before 
a  State  court.    How  should  this  be  decided  ? 

29 
Davis  v.  Packard,  7  Peters,  276  (1833) 

Packard  and  others  brought  suit  against  Davis  in  the  courts 
of  New  York  and  obtained  judgment  against  him.  Davis  was 
then  Consul-General  from  Saxony,  stationed  in  the  city  of 
New  York.  The  Supreme  Court,  on  writ  of  error,  reversed 
the  decision  of  the  State  court.    Why? 

30 

Schooner  Exchange  v.  McFaddon,  7  Cranch,  116  (1812) 

The  schooner  Exchange,  a  public  armed  vessel  of  France, 
was  libelled  in  the  port  of  Philadelphia  by  McFaddon,  on  the 
ground  that  it  had  formerly  belonged  to  him  but  had  been 
forcibly  seized  by  certain  persons  and  disposed  of  under  the 
orders  of  Napoleon.  The  Circuit  Court  ordered  the  vessel 
restored  to  its  former  owners ;  the  Supreme  Court  reversed  the 
decision.    Why  ? 

31 

Cherokee  Nation  v.  Georgia,  5  Peters,  1  (1831) 

The  Cherokee  Nation,  occupying  lands  in  the  State  of 
Georgia,  filed  an  original  bill  in  the  Supreme  Court,  as  though 
it  were  a  foreign  State,  praying  for  an  injunction  to  restrain 


Leading  Cases  303 

Georgia  from  enforcing  its  laws  within  the  territory  occupied 
by  the  Cherokees.  The  court  refused  the  injunction.  Ques- 
tions: 1.  What  may  have  been  the  grounds  for  this  refusal? 
2.  Was  it  proper  to  bring  the  original  suit  in  the  Supremo 
Court?  3.  Why  was  not  the  suit  barred  by  the  11th  Amend- 
ment? 

32   ^ 

Wallach  v.  Van  Eiswick,  92  U.  S.,  202  (1875) 

The  complainants,  children  and  heirs  of  Wallach,  a  Con- 
federate officer  whose  property  had  been  condemned  and  sold 
by  the  Federal  government,  sought  to  obtain  an  interest  in  the 
property  now  possessed  by  Van  Kiswick,  on  the  grounds:  1. 
That  Congress  could  not  compel  the  forfeiture  of  the  property 
beyond  the  life  of  the  ofTender  (Constitution,  3,  3,  2). 
2.  That  the  proclamation  of  amnesty  pardoning  all  who  had 
taken  up  arms  against  the  government  restored  the  property  to 
its  original  status. 

33 

Lascelles  v.  Georgia,  148  U.  S.,  537  (1892) 
Lascelles,  extradited  from  New  York  to  Georgia  for  lar- 
ceny, was  indicted  by  the  jury  on  the  charge  of  forgery.    His 
defense  was  that,  having  been  extradited  for  one  offense,  he 
could  not  be  tried  for  another.    Was  the  defense  good  ? 

34 
American  Publishing  Co.  v.  Fisher,  16G  U.  S.,  464  (1897) 
Plaintiffs  sued  the  defendant  for  $20,000  in  the  District 
Court,  Salt  Lake  City,  Territory  of  Utah,  before  a  jury  of 
twelve  men.  Nine  of  the  latter  gave  verdict  for  the  defendant, 
the  others  not  concurring.  Tlic  court  accepted  the  verdict, 
Section  3171  of  the  laws  of  Utah  allowing  decisions  by  nine  or 
more  of  a  jury.  The  Supreme  Court  found  the  law  to  be  un- 
constitutional.   Whv  ? 


304  Constitutional  Law 

35 

Hyatt  v.  People,  188  U.  S.,  G91  (1902) 

Hyatt  was  arrested  by  the  authority  of  the  Governor  of  New- 
York,  acting  in  pursuance  of  requisition  papers  from  the 
Governor  of  Tennessee.  The  papers  recited  that  Hyatt  had 
been  indicted  in  Tennessee  for  grand  larceny,  and  that  he 
was  a  fugitive  from  justice  from  that  State ;  but  in  the  papers 
it  did  not  appear  that  he  was  in  Tennessee  when  the  alleged 
offense  was  committed.  Should  Hyatt  be  held  under  these 
facts  ? 

36 

United  States  v.  Fox,  94  U.  S.,  315  (1876) 

Charles  Fox,  of  the  city  of  New  York,  died,  bequeathing  his 
property  to  the  United  States.  The  heirs  contested  the  devise 
on  the  following  grounds : 

1.  That  the  Federal  government  could  not  acquire  property 
by  such  means. 

2.  That  the  laws  of  New  York  governing  the  descent  of 
property  limited  devises  to  natural  persons,  or  to  such  artificial 
persons  (corporations)  as  were  created  under  the  laws  of  the 
State. 

37 

Patterson  v.  Bark  Eudora,  190  U.  S.,  169  (1902) 

A  Federal  law  made  it  unlawful  for  any  person  to  pay  to 
any  seaman  wages  in  advance  of  services  performed,  or  to  pay 
such  wages  to  anyone  else.  Patterson  and  others,  seamen  on 
the  British  bark  Eudora,  sued  for  their  wages  in  the  District 
Court  for  the  Eastern  District  of  Pennsylvania,  alleging  that 
part  of  their  wages  had  been  paid  in  advance  to  the  shipping 
agent  at  Portland,  Me.,  through  whom  they  had  been  em- 
ployed. It  was  admitted  at  the  trial  that  such  advance  pay- 
ment was  not  contrary  to  the  shipping  laws  of  Great  Britain. 


Leading  Cases  305 

The  District  Court  dismissed  the  suit.    The  Supreme  Court 
reversed  the  decision.    Why? 

38 

Davis  v.  Beason,  133  U.  S.,  333  (1889) 

A  statute  of  Idalio  forbade  anyone  to  vote  at  any  election, 
or  to  hold  any  office  of  honor,  trust,  or  profit  in  the  Territory, 
who  was  a  bigamist  or  polygamist,  or  who  belonged  to  any 
organization  that  encouraged  bigamy  or  polygamy.  Davis, 
indicted  for  procuring  himself  to  be  made  an  elector  in  viola- 
tion of  the  statute,  contended  that  the  1st  Amendment  to  the 
Constitution  made  the  statute  unconstitutional.  Was  his  con- 
tention valid? 

39'--" 

Presser  v.  Illinois,  116  U.  S.,  252  (1885) 

A  statute  of  Illinois,  after  providing  for  an  organized 
militia,  forbade  all  other  bodies  of  men  to  associate  together 
as  military  organizations,  or  to  drill  in  public  or  parade 
with  arms,  without  the  consent  of  the  Governor.  Presser, 
indicted  and  tried  for  parading  at  the  head  of  a  private  mili- 
tary company  in  violation  of  the  statute,  contended  that  the 
statute  was  unconstitutional,  being  repugnant  to  the  2d 
Amendment  and  to  Section  1  of  the  14th  Amendment.  Was  it? 

40 
Boyd  v.  United  States,  116  TJ.  S.,  616  (1885) 

The  court  in  this  case  decided  that  the  fifth  section  of  the 
act  of  June  22,  1874,  authorizing  a  court  of  the  United  States 
in  revenue  cases,  on  motion  by  the  government  attorney,  to 
require  the  defendant  to  produce  in  court  his  private  books, 
invoices,  papers,  etc.,  or  else  the  charge  against  him  should  be 
taken  as  confessed,  was  repugnant  to  certain  amendments  to 
ihe  Constitution.  To  which  was  it  repugnant,  and  why? 
20 


306  Constitutional  Law 

41 

Ex  PARTE  Lange,  18  Wallace,  163  (1873) 
Lange  was  convicted  of  the  crime  of  embezzling  from  the 
U.  S.  mails,  the  punishment  for  the  offense,  as  provided  by 
statutes,  being  fine  or  imprisonment.  The  court  sentenced 
him  to  pay  a  fine  of  $200  and  to  be  imprisoned  for  one  year. 
He  paid  the  fine  and  began  to  serve  his  sentence.  Next  day  he 
was  returned  to  the  court,  and  the  same  judge  remanded  the 
fine,  but  resentenced  him  to  imprisonment.  Lange  then  sued 
out  a  writ  of  habeas  corpus,  on  the  ground  that  the  sentence 
was  contrary  to  the  5th  Amendment.  Was  his  contention 
correct  ? 

43 
U.  S.  V.  Perez,  9  Wheaton,  579  (1834) 
Joseph  Perez  was  put  to  trial  for  a  criminal  offense.  The 
jury,  being  unable  to  agree  on  a  verdict,  were  discharged  by 
the  court  without  the  consent  of  the  prisoner  or  his  counsel. 
The  latter  then  demanded  the  discharge  of  his  client,  on  the 
ground  that  further  trial  would  subject  him  to  be  twice  tried 
for  the  same  offense. 

^43 
Dreter  v.  Illinois,  187  U.  S.,  71  (1903) 

In  the  case  of  Dreyer,  who  was  prosecuted  for  a  misde- 
meanor, the  jury,  unable  to  agree,  were  discharged  without 
the  consent  of  the  accused.  Dreyer  then  demanded  his  dis- 
charge, on  the  ground  that  another  trial  would  not  be  due 
process  of  law.    Was  he  right  ? 

44 
Maxwell  v.  Dow,  176  U.  S.,  581  (1899) 

A  statute  of  the  State  of  Utah  allowed  trial  on  an  informa- 
tion, and  conviction  by  juries  of  eight  persons.  The  plaintiff 
in  this  case  protested  that  his  conviction  imder  the  law  was 


Leading  Cases  307 

unconstitutional :  that  it  was  not  "  due  process  of  law  " ;  and 
that  he  had  a  constitutional  rijEjht  to  an  indictment  and  to  be 
tried  by  twelve  jurors  instead  of  eight. 

45 

Knox  v.  Lee,  12  Wall.,  457  (1870) 

During  the  Civil  War  the  property  of  Lee,  a  loyal  citizen 
residing  in  Texas,  was  confiscated  and  sold  under  statutes 
enacted  by  the  Confederate  government.  After  the  war  Lee 
sued  Knox,  the  holder  of  the  property,  to  recover  the  value 
thereof.    Had  he  any  rights  in  the  case  ? 

46 

McDonald  v.  Massachusetts,  180  U.  S.,  311  (1901) 

In  1887  the  legislature  of  Massachusetts  enacted  that  who- 
ever should  be  convicted  of  a  felony  thereafter,  who  had  been 
twice  convicted  before  and  sentenced  to  three  or  more  years 
for  each  offense,  should  be  deemed  an  habitual  criminal  and 
be  sentenced  to  prison  for  twenty-five  years.  The  plaintiff", 
adjudged  and  sentenced  as  an  habitual  criminal  under  this 
law,  contended  that  it  was  unconstitutional.    Was  he  right? 

47 
Pervear  v.  Commonwealth,  5  Wallace,  475  (1866) 

Pervear,  a  resident  of  Massachusetts,  was  indicted  in  the 
courts  of  that  State  for  selling  intoxicating  liquor  without  a 
license.  His  defense  was:  1.  That  he  had  already  paid  the 
internal  revenue  tax  demanded  by  the  Federal  government 
and  could  not  be  taxed  therefore  by  the  State.  2.  That  the 
law  of  ^Massachusetts,  under  wliich  he  was  indicted,  was  un- 
constitutional because  it  imposed  an  excessive  fine.  The 
statute  imposed  a  fine  of  fifty  dollars  for  each  offense. 


308  Constitutional  Law 

48 

Hans  v.  Louisiana,  134  U.  S.,  1  (1889) 

The  plaintiff,  citizen  of  Louisiana,  brought  suit  against  the 
State  in  the  Federal  Circuit  Court  to  recover  the  value  of  cer- 
tain bonds  issued  by  the  State,  alleging  a  case  under  the  Con- 
stitution and  laws  of  the  United  States.  Was  he  right?  The 
case  finally  came  to  the  Supreme  Court,  which  decided  that 
the  Federal  courts  had  no  jurisdiction.    Why  ? 

49 
North  Caeolina  v.  Temple,  134  U.  S.,  22  (1890) 

The  original  suit  was  brought  by  Temple  against  the  State 
of  North  Carolina  and  its  auditor,  W.  Brooks,  to  compel  the 
State  and  its  officials  to  levy  a  tax  for  the  payment  of  the 
interest  on  certain  bonds.  The  Circuit  Court  granted  the 
decree,  whereupon  the  defendants  carried  the  case  to  the 
Supreme  Court  on  writ  of  error.    What  should  the  decision  be  ? 

50 

TiNDAL  V.  Wesley,  1G7  U.  S.  (1896) 

Wesley,  citizen  of  New  York,  sued  Tindal  and  Boyles, 
citizens  of  South  Carolina,  to  recover  possession  of  certain 
property  wrongfully  held  by  them  in  the  city  of  Columbia, 
S.  C.  The  defendants  replied  that  they  held  the  property  in 
behalf  of  the  State,  Tindal  as  Secretary  of  State,  Boyles  a^ 
his  clerk,  and  that  the  suit  was  therefore  void  under  the  11th 
Amendment  to  the  Constitution.  The  record  of  the  case  as 
presented  to  the  Supreme  Court  did  not  show  any  evidence 
in  support  of  their  assertion.    What  should  the  decision  be  ? 

51 

Plessy  v.  Ferguson,  163  U.  S.,  540  (1895) 

Plessy,  one-eighth  African,  was  fined  for  occupying  a  seat  in 
a  railway  car  set  apart  for  whites,  in  defiance  of  a  statute  com- 


Lfading  Cases  309 

pelling  separate  accommodations  for  the  two  races  on  rail- 
roads within  the  State  of  Louisiana.  He  pleaded  in  defense 
that  the  statute  was  unconstitutional,  violating  Amendment 
13,  and  Section  1  of  Amendment  14.  Plessy  was  not  an  inter- 
state passenger. 

53 

Bradwell  v.  Illinois,  16  Wallace,  130  (1872) 

ifrs.  Bradwell,  born  in  Vermont  but  residing  at  the  time  in 
Chicago,  111.,  on  being  refused  admission  to  the  bar  of  that 
State  on  the  grounds  that  females  were  not  eligible  under  the 
laws  of  Illinois,  carried  her  case  to  the  Supreme  Court,  alleg- 
ing among  other  things :  1.  That  as  a  citizen  of  Vermont  and 
of  the  United  States  she  was  denied  the  privileges  and  im- 
munities of  the  citizens  of  the  several  States.  Was  her  con- 
tention sound? 

53 

Atkin  i\  Kansas,  191  U.  S.,  207  (1902) 

A  Kansas  statute  made  it  unlawful  for  laborers  to  bo  em- 
ployed on  behalf  of  the  State  or  any  of  its  municipalities  for 
more  than  eight  hours  per  day.  Atkin,  engaged  in  building  a 
road  for  Kansas  City,  employed  one  Reese  to  work  ten  hours 
per  day  at  the  eight  hour  rate.  When  prosecuted  he  con- 
tended that  the  statute  was  unconstitutional  as  depriving  him 
of  property  without  due  process  of  law. 

54 

In  re  rARROTT,  1.  Fed.  Eep.,  481  (1880) 

Parrott  was  accused  of  violating  the  following  act  of  the 
legislature  of  California:  "  Xo  corporation  now  existing,  or 
hereafter  formed  under  the  laws  of  this  State,  shall  employ 
any  Chinese  or  ^Mongolian."  What  possible  defense  was  open 
to  him  under  the  Constitution  ? 


310  CONSTITUTIOXAL  LaW 

55 
Slaughter  House  Case,  16  Wall.,  36  (1873) 
The  legislature  of  Louisiana  granted  to  a  certain  corpora- 
tion the  exclusive  right  to  maintain  slaughter  houses,  land- 
ings and  yards  for  cattle  within  the  parishes  of  Orleans, 
Jefferson  and  St.  Bernard;  it  further  provided  that  all 
cattle  intended  for  beef  in  that  district  should  be  brought  to 
the  yards  and  houses  of  the  said  corporation,  and  that  the 
latter  should  charge  a  prescribed  fee  for  the  use  of  its  yards 
and  for  the  slaughter  of  animals. 

1.  Does  this  constitute  an  unlawful  monopoly? 

2.  To  what  clause  of  the  Constitution  does  the  enactment 
appear  to  be  repugnant? 

3.  Under  what  principle  might  it  be  declared  valid? 


APPENDICES 

A.  The  Articles  of  Confederation 
B.  The  Constitution  of  the  United  States 


APPENDIX  A 

ARTICLES  OF  CONFEDERATION 

Abticles  of  Confederation'  and  Perpetual  Union  between  the 
States  of  New  Hampshire,  Massachusetts  Bay,  Rhode 
Island  and  Providence  Plantations,  Connecticlt,  New  York, 
New  Jersey,  Pennsylvania,  Delaware,  Maryland,  Virginia, 
Nobth  Carolina,  South  Carolina,  and  Georgia. 
Article  I. — The  style  of  this  confederacy  shall  be,  "  The  United 
States  of  America." 

Article  II. — Each  State  retains  its  sovereignty,  freedom,  and  in- 
dependence, and  every  power,  jurisdiction,  and  riglit,  which  is  not 
by  this  confederation  expressly  delegated  to  the  United  States  in 
Congress  assembled. 

Article  III. — The  said  States  hereby  severally  enter  Into  a  firm 
league  of  friendship  with  each  other,  for  their  common  defense, 
the  security  of  their  liberties,  and  their  mutual  and  general  wel- 
fare, binding  themselves  to  assist  each  other  against  all  force 
offered  to,  or  attacks  made  upon  them,  or  any  of  them,  on  account 
of  religion,  sovereignty,  trade,  or  any  other  pretense  whatever. 

Article  IV. — The  better  to  secure  and  perpetuate  mutual  friend- 
ship and  intercourse  among  tlie  people  of  the  different  States  In 
this  Union,  the  free  inhabitants  of  each  of  these  States,  paupers, 
vagabonds,  and  fugitives  from  justice  excepted,  shall  be  entitled 
to  all  privileges  and  immunities  of  free  citizens  In  the  several 
States;  and  the  people  of  each  State  shall  have  free  ingress  and 
regress  to  and  from  any  other  State,  and  shall  enjoy  therein 
all  the  privileges  of  trade  and  commerce,  subject  to  the  same 
duties,  impositions,  and  restrictions,  as  the  inhabitants  thereof 
respectively;  provided  that  such  restrictions  sluiU  not  extend  so 
far  as  to  prevent  the  removal  of  property  imported  into  any 
State,  to  any  other  State  of  which  the  owner  is  an  inhabitant; 
provided,  also,  that  no  imposition,  duties,  or  restrictions,  shall  be 
laid  by  any  State  on  the  property  of  the  United  States  or  either 
of  them. 


314  COXSTITUTIOXAL    LaW 

If  any  person  guilty  of,  or  charged  with,  treason,  felony,  or  other 
high  misdemeanor  in  any  State,  shall  flee  from  justice,  and  be 
found  in  any  of  the  United  States,  he  shall,  upon  demand  of  the 
governor  or  executive  power  of  the  State  from  which  he  fled,  be 
delivered  up,  and  removed  to  the  State  having  jurisdiction  of  his 
offense. 

Full  faith  and  credit  shall  be  given,  in  each  of  these  States,  to 
the  records,  acts,  and  judicial  proceedings  of  the  courts  and  magis- 
trates of  every  other  State. 

Article  V. — For  the  more  convenient  management  of  the  general 
interests  of  the  United  States,  delegates  shall  be  annually  appointed 
in  such  manner  as  the  legislature  of  each  State  shall  direct,  to 
meet  in  Congress  on  the  first  Monday  in  November,  in  every  year, 
with  a  power  reserved  to  each  State  to  recall  its  delegates,  or  any 
of  them,  at  any  time  within  the  year,  and  to  send  others  in  their 
stead  for  the  remainder  of  the  year. 

No  State  shall  be  represented  in  Congress  by  less  than  two,  nor 
by  more  than  seven  members;  and  no  person  shall  be  capable  of 
being  a  delegate  for  more  than  three  years,  in  any  term  of  six 
years;  nor  shall  any  person,  being  a  delegate,  be  capable  of  holding 
any  office  under  the  United  States,  for  which  he,  or  another  for 
his  benefit,  receives  any  salary,  fees,  or  emolument  of  any  kind. 

Each  State  shall  maintain  its  own  delegates  in  any  meeting  of 
the  States  and  while  they  act  as  members  of  the  committee  of 
the  States. 

In  determining  questions  in  the  United  States  in  Congress  as- 
sembled, each  State  shall  have  one  vote. 

Freedom  of  speech  and  debate  in  Congress  shall  not  be  im- 
peached or  questioned  in  any  court  or  place  out  of  Congress;  and 
the  members  of  Congress  shall  be  protected  in  their  persons  from 
arrests  and  imprisonments  during  the  time  of  their  going  to  and 
from,  and  attendance  on  Congress,  except  for  treason,  felony,  or 
breach  of  the  peace. 

Article  VI. — No  State,  without  the  consent  of  the  United  States, 
in  Congress  assembled,  shall  send  any  embassy  to,  or  receive  any 
embassy  from,  or  enter  into  any  conference,  agreement,  alliance, 
or  treaty,  with  any  king,  prince,  or  state;  nor  shall  any  person 
holding  any  office  of  profit  or  trust  under  the  United  States,  or 
any  of  them,  accept  of  any  present,  emolument,  office,  or  title  of  any 
kind  whatever,  from  any  king,  prince,  or  foreign  state;  nor  shall 
the  United  States,  in  Congress  assembled,  or  any  of  them,  grant 
any  title  of  nobility. 


Appendices  315 

No  two  or  more  States  shall  enter  into  any  treaty,  confederation, 
or  alliance  whatever  between  thorn,  without  the  cons«;nt  of  tlie 
United  States,  in  Congress  assembled,  specifying  accurately  tho 
purposes  for  which  the  same  is  to  be  entered  into,  and  how  long  it 
shall  continue. 

No  States  shall  lay  any  imposts  or  duties  which  may  interfere 
with  any  stipulations  in  treaties  entered  into  by  the  United  States, 
In  Congress  assembled,  with  any  king,  prince,  or  state,  in  pursu- 
ance of  any  treaties  already  proposed  by  Congress  to  the  courts 
of  France  and  Spain. 

No  vessels  of  war  shall  be  kept  up  in  time  of  peace,  by  any 
State,  except  such  number  only  as  shall  be  deemed  necessary,  by 
the  United  States  in  Congress  assembled,  for  the  defense  of  such 
State  or  its  trade;  nor  shall  any  body  of  forces  be  kept  up,  by  any 
State,  in  time  of  peace,  except  such  number  only  as,  in  the  judg- 
ment of  the  United  States,  in  Congress  assembled,  shall  be  deemed 
requisite  to  garrison  the  forts  necessary  for  the  defense  of  such 
State;  but  every  State  shall  always  keep  up  a  well  regulated  and 
disciplined  militia,  sufficiently  armed  and  accoutered,  and  shall 
provide  and  constantly  have  ready  for  use,  in  public  stores,  a  due 
number  of  field-pieces  and  tents,  and  a  proper  quantity  of  arms, 
ammunition,  and  camp  equipage. 

No  State  shall  engage  in  any  war  without  the  consent  of  the 
United  States,  in  Congress  assembled,  unless  such  State  be  actually 
Invaded  by  enemies,  or  shall  have  received  certain  advice  of  a 
resolution  being  formed  by  some  nation  of  Indians  to  invade  such 
State,  and  the  danger  is  so  imminent  as  net  to  admit  of  a  delay 
till  the  United  States,  in  Congress  assembled,  can  be  consulted; 
nor  shall  any  State  grant  commissions  to  any  ships  or  vessels  of 
war,  nor  letters  of  marque  or  reprisal,  except  it  be  after  a  declara- 
tion of  war  by  the  United  States,  in  Congress  assembled,  and  then 
only  against  the  kingdom  or  state,  and  the  subjects  thereof  against 
which  war  has  been  so  declared,  and  under  such  regulations  as 
shall  be  established  by  the  United  States,  in  Congress  assembled, 
unless  such  State  be  infested  by  pirates,  in  which  case  vessels  of 
war  may  be  fitted  out  for  that  occasion,  and  kept  so  long  as  the 
danger  shall  continue,  or  until  the  United  States,  in  Congress 
assembled,  shall  determine  otlierwise. 

Article  VII.— "When  land  forces  are  raised  by  any  State  for  the 
common  defense,  all  officers  of  or  under  the  rank  of  colonel,  shall 
be  appointed  by  the  legislature  of  each  State  respectively  by 


316  Constitutional  Law 

•whom  such  forces  shall  be  raised,  or  in  such  manner  as  such 
State  shall  direct,  and  all  vacancies  shall  be  filled  up  by  the  State 
which  first  made  the  appointment. 

Article  VIII. — All  charges  of  war,  and  all  other  expenses  that 
shall  be  incurred  for  the  common  defense  or  general  welfare,  and 
allowed  by  the  United  States  in  Congress  assembled,  shall  be 
defrayed  out  of  a  common  treasury,  which  shall  be  supplied  by 
the  several  States,  in  proportion  to  the  value  of  all  land  within 
each  State,  granted  to,  or  surveyed  for,  any  person,  as  such  land 
and  the  buildings  and  improvements  thereon  shall  be  estimated 
according  to  such  mode  as  the  United  States,  in  Congress  assem- 
bled, shall,  from  time  to  time,  direct  and  appoint.  The  taxes  for 
paying  that  proportion  shall  be  laid  and  levied  by  the  authority 
and  direction  of  the  legislatures  of  the  several  States,  within  the 
time  agreed  upon  by  the  United  States,  in  Congress  assembled. 

Article  IX. — The  United  States,  in  Congress  assembled,  shall 
have  the  sole  and  exclusive  right  and  power  of  determining  on 
peace  and  war,  except  in  the  cases  mentioned  in  the  sixth  Article; 
of  sending  and  receiving  ambassadors;  entering  into  treaties  and 
alliances,  provided  that  no  treaty  of  commerce  shall  be  made 
whereby  the  legislative  power  of  the  respective  States  shall  be 
restrained  from  imposing  such  imposts  and  duties  on  foreigners, 
as  their  own  people  are  subjected  to,  or  from  prohibiting  the  expor- 
tation or  importation  of  any  species  of  goods  or  commodities  what- 
soever; of  establishing  rules  for  deciding,  in  all  cases,  what  cap- 
tures on  land  or  water  shall  be  legal,  and  in  what  manner  prizes 
taken  by  land  or  naval  forces  in  the  service  of  the  United  States, 
shall  be  divided  or  appropriated;  of  granting  letters  of  marque 
and  reprisal  in  times  of  peace;  appointing  courts  for  the  trial 
of  piracies  and  felonies  committed  on  the  high  seas;  and  estab- 
lishing courts  for  receiving  and  determining  finally  appeals  in  all 
cases  of  captures;  provided  that  no  member  of  Congress  shall  be 
appointed  a  judge  of  any  of  the  said  courts. 

The  United  States,  in  Congress  assembled,  shall  also  be  the  last 
resort  on  appeal,  in  all  disputes  and  differences  now  subsisting, 
or  that  hereafter  may  arise  between  two  or  more  States  concerning 
boundary,  jurisdiction,  or  any  other  cause  whatever;  which  author- 
ity shall  always  be  exercised  in  the  manner  following:  Whenever 
the  legislative  or  executive  authority,  or  lawful  agent  of  any  State 
In  controversy  with  another,  shall  present  a  petition  to  Congress, 
stating  the  matter  in  question,  and  praying  for  a  hearing,  notice 


Appendices  317 

thereof  shall  be  given  by  order  of  Congress,  to  the  legislative  or 
executive  authority  of  the  other  State  in  controversy,  and  a  day 
assigned  for  the  appearance  of  the  parties  by  their  lawful  agents, 
who  shall  then  be  directed  to  appoint,  by  joint  consent,  com- 
missioners or  judges  to  constitute  a  court  for  hearing  and  determ- 
ining the  matter  in  question;  but  if  they  cannot  agree.  Congress 
shall  name  three  persons  out  of  each  of  tlie  United  States,  and  from 
the  list  of  such  persons  each  party  shall  alternately  strike  out  one, 
the  petitioners  beginning,  until  the  number  shall  be  reduced  to 
thirteen;  and  from  that  number  not  less  than  seven  nor  more 
than  nine  names,  as  Congress  shall  direct,  shall,  in  the  presence 
of  Congress,  be  drawn  out  by  lot;  and  the  persons  whose  names 
shall  be  so  drawn,  or  any  five  of  them,  shall  be  commissioners  or 
judges,  to  hear  and  finally  determine  the  controversy,  so  always  as 
a  major  part  of  the  judges,  who  shall  hear  the  cause,  shall  agree 
In  the  determination;  and  if  either  party  shall  neglect  to  attend 
at  the  day  appointed,  without  showing  reasons  which  Congress 
shall  judge  sufficient,  or  being  present,  shall  refuse  to  strike,  tlie 
Congress  shall  proceed  to  nominate  three  persons  out  of  each  State, 
and  the  secretary  of  Congress  shall  strike  in  behalf  of  such  party 
absent  or  refusing;  and  the  judgment  and  sentence  of  the  court,  to 
be  appointed  in  the  manner  before  prescribed,  shall  be  final  and  con- 
clusive; and  if  any  of  the  parties  shall  refuse  to  submit  to  the 
authority  of  such  court,  or  to  appear  or  defend  their  claim  or  cause, 
the  court  shall  nevertheless  proceed  to  pronounce  sentence  or  judg- 
ment, which  shall  in  like  manner  be  final  and  decisive;  the  judg- 
ment or  sentence  and  other  proceedings  being  in  either  case  trans- 
mitted to  Congress,  and  lodged  among  the  acts  of  Congress  for  the 
security  of  the  parties  concerned;  provided,  that  every  commis- 
sioner, before  he  sits  in  judgment,  shall  take  an  oath,  to  be  ad- 
ministered by  one  of  the  judges  of  the  supreme  or  superior  court 
of  the  State  where  the  cause  shall  be  tried,  "  well  and  truly  to  hear 
and  determine  the  matter  in  question,  according  to  the  best  of  his 
Judgment,  without  favor,  affection,  or  hope  of  reward."  Provided, 
also,  that  no  State  shall  be  deprived  of  territory  for  the  benefit 
of  the  United  States. 

All  controversies  concerning  the  private  rigiit  of  soil  claimed 
under  different  grants  of  two  or  more  States,  wiiose  jurisdictions, 
as  they  may  respect  such  lands,  and  tlie  States  which  passed  such 
grants  are  adjusted,  the  said  grants  or  cither  of  them  being  at 
the  same  claimed  to  have  originated  antecedent  to  such  settlement 


318  Constitutional  Law 

of  jurisdiction,  shall,  on  the  petition  of  either  party  to  the  Congress 
of  the  United  States,  be  finally  determined,  as  near  as  may  be, 
in  the  same  manner  as  is  before  prescribed  for  deciding  disputes 
respecting  territorial  jurisdiction  between  different  States. 

The  United  States,  in  Congress  assembled,  shall  also  have  the 
sole  and  exclusive  right  and  power  of  regulating  the  alloy  and 
value  of  coin  struck  by  their  own  authority,  or  by  that  of  the 
respective  States;  fixing  the  standard  of  weights  and  measures 
throughout  the  United  States,  regulating  the  trade  and  managing 
all  affairs  with  the  Indians  not  members  of  any  of  the  States; 
provided  that  the  legislative  right  of  any  State,  within  its  own 
limits,  be  not  infringed  or  violated;  establishing  and  regulating 
post-offices  from  one  State  to  another  throughout  all  the  United 
States,  and  exacting  such  postage  on  the  papers  passing  through 
the  same,  as  may  be  requisite  to  defray  the  expenses  of  the 
said  office;  appointing  all  officers  of  the  land  forces  in  the  service 
of  the  United  States,  excepting  regimental  officers;  appointing 
all  the  officers  of  the  naval  forces,  and  commissioning  all  officers 
whatever  in  the  service  of  the  United  States;  making  rules  for  the 
government  and  regulation  of  the  said  land  and  naval  forces,  and 
directing  their  operations. 

The  United  States,  in  Congress  assembled,  shall  have  authority 
to  appoint  a  committee,  to  sit  in  the  recess  of  Congress,  to  be  de- 
nominated "A  Committee  of  the  States,"  and  to  consist  of  one 
delegate  from  each  State;  and  to  appoint  such  other  committees 
and  civil  officers  as  may  be  necessary  for  managing  the  general 
affairs  of  the  United  States  under  their  direction;  to  appoint  one 
of  their  number  to  preside,  provided  that  no  person  be  allowed  to 
serve  in  the  office  of  president  more  than  one  year  in  any  term  of 
three  years;  to  ascertain  the  necessary  sums  of  money  to  be  raised 
for  the  service  of  the  United  States,  and  to  appropriate  and  apply 
the  same  for  defraying  the  public  expenses;  to  borrow  money  or 
emit  bills  on  the  credit  of  the  United  States,  transmitting  every 
half  year  to  the  respective  States  an  account  of  the  sums  of  money 
so  borrowed  or  emitted;  to  build  and  equip  a  navy;  to  agree  upon 
the  number  of  land  forces,  and  to  make  requisitions  from  each 
State  for  its  quota,  in  proportion  to  the  number  of  white  inhabi- 
tants in  such  State,  which  requistion  shall  be  binding;  and  there- 
upon the  Legislature  of  each  State  shall  appoint  the  regimental 
officers,  raise  the  men,  and  clothe,  arm,  and  equip  them  in  a 
Boldier-like  manner  at  the  expense  of  the  United  States;  and  the 


Appendices  319 

officers  and  men  so  clothed,  armed,  and  equipped  shall  march  to 
the  place  appointed,  and  within  the  time  agreed  on  by  the  United 
States,  in  Congress  assembled;  but  if  the  United  States,  in  C'on- 
gress  assembled,  shall,  on  consideration  of  circumstances,  judge 
proper  tliat  any  State  should  not  raise  men,  or  should  raise  a 
smaller  number  than  its  quota,  and  tliat  any  other  State  sliould 
raise  a  greater  number  of  men  than  the  quota  thereof,  such  extra 
number  shall  be  raised,  officered,  clothed,  armed,  and  equipped 
In  the  same  manner  as  the  quota  of  such  State,  unless  the  Legis- 
lature of  such  State  shall  judge  tliat  such  extra  number  cannot  be 
safely  spared  out  of  the  same,  in  whicli  case  they  shall  raise, 
officer,  clothe,  arm,  and  equip  as  many  of  such  extra  number  as 
they  judge  can  be  safely  spared,  and  the  officers  and  men  so  clothed, 
armed,  and  equipped  shall  march  to  the  place  appointed,  and 
within  the  time  agreed  on  by  the  United  States,  in  Congress 
assembled. 

The  United  States,  In  Congress  assembled,  shall  never  engage 
in  a  war,  nor  grant  letters  of  marque  and  reprisal  in  time  of 
peace,  nor  enter  into  any  treaties  or  alliances,  nor  coin  money, 
nor  regulate  the  value  thereof,  nor  ascertain  the  sums  and  expenses 
necessary  for  the  defense  and  welfare  of  the  United  States,  or  any 
of  them,  nor  emit  bills,  nor  borrow  money  on  the  credit  of  the 
United  States,  nor  appropriate  money,  nor  agree  upon  the  number 
of  vessels  of  war  to  be  built  or  purchased,  or  the  number  of  land 
or  sea  forces  to  be  raised,  nor  appoint  a  commander-in-chief  of 
the  army  or  navy  unless  nine  States  assent  to  the  same,  nor  shall 
a  question  on  any  other  point,  except  for  adjourning  from  day 
to  day,  be  determined,  unless  by  the  votes  of  a  majority  of  the 
United  States,  in  Congress  assembled. 

The  Congress  of  the  United  States  shall  have  power  to  adjourn 
to  any  time  within  the  year,  and  to  any  place  within  the  United 
States,  so  that  no  period  of  adjournment  be  for  a  longer  duration 
than  the  space  of  six  months,  and  shall  publish  the  journal  of  their 
proceedings  monthly,  except  such  parts  thereof  relating  to  treaties, 
alliances,  or  military  operations  as  in  their  judgment  require 
secrecy:  and  the  yeas  and  nays  of  the  delegates  of  each  State,  on 
any  question,  shall  be  entered  on  the  journal,  when  it  is  desired 
by  any  delegate;  and  the  delegates  of  a  State,  or  any  of  them. 
at  his  or  their  request,  shall  be  furnished  with  a  transcript  of  the 
said  journal,  except  such  parts  as  are  above  excepted,  to  lay  before 
the  legislatures  of  the  several  States. 


320  COXSTITUTIONAL   LaW 

Article  X. — The  committee  of  the  States,  or  any  nine  of  them, 
shall  be  authorized  to  execute,  in  the  recess  of  Congress,  such  of 
the  powers  of  Congress  as  the  United  States,  In  Congress  assem- 
bled, by  the  consent  of  nine  States,  shall,  from  time  to  time,  think 
expedient  to  vest  them  with;  provided  that  no  power  be  delegated 
to  the  said  committee,  for  the  exercise  of  which,  by  the  articles 
of  confederation,  the  voice  of  nine  States,  in  the  Congress  of  the 
United  States  assembled  is  requisite. 

Article  XI. — Canada  acceding  to  this  confederation,  and  joining 
in  the  measures  of  the  United  States,  shall  be  admitted  into,  and 
entitled  to  all  the  advantages  of  this  Union;  but  no  other  colony 
shall  be  admitted  into  the  same  unless  such  admission  be  agreed 
to  by  nine  States. 

Article  XII. — All  bills  of  credit  emitted,  moneys  borrowed,  and 
debts  contracted  by  or  under  the  authority  of  Congress,  before  the 
assembling  of  the  United  States,  in  pursuance  of  the  present  con- 
federation, shall  be  deemed  and  considered  as  a  charge  against 
the  United  States,  for  payment  and  satisfaction  whereof  the  said 
United  States  and  the  public  faith  are  hereby  solemnly  pledged. 

Article  XIII. — Every  State  shall  abide  by  the  determinations  of 
the  United  States,  in  Congress  assembled,  on  all  questions  which 
by  this  Confederation  are  submitted  to  them.  And  the  Articles 
of  this  Confederation  shall  be  inviolably  observed  by  every  State, 
and  the  Union  shall  be  perpetual;  nor  shall  any  alteration  at  any 
time  hereafter  be  made  in  any  of  them,  unless  such  alteration  be 
agreed  to  in  a  Congress  of  the  United  States,  and  be  afterwards 
currence  of  two  thirds  of  the  Members  present. 

And  whereas  it  hath  pleased  the  great  Governor  of  the  world 
to  incline  the  hearts  of  the  legislatures  we  respectively  represent 
in  Congress,  to  approve  of,  and  to  authorize  us  to  ratify  the  said 
Articles  of  Confederation  and  perpetual  Union,  Know  ye,  that  we, 
the  undersigned  delegates,  by  virtue  of  the  power  and  authority 
to  us  given  for  that  purpose,  do,  by  these  presents,  in  the  name 
and  in  behalf  of  our  respective  constituents,  fully  and  entirely 
ratify  and  confirm  each  and  every  of  the  said  Articles  of  Con- 
federation and  perpetual  Union,  and  all  and  singular  the  matters 
and  things  therein  contained.  And  we  do  further  solemnly  plight 
and  engage  the  faith  of  our  respective  constituents,  that  they  shall 
abide  by  the  determinations  of  the  United  States,  in  Congress  as- 
sembled, on  all  questions  which  by  the  said  Confederation  are 
submitted  to  them;  and  that  the  Articles  thereof  shall  be  inviolably 


Appendices  321 

observed  by  the  States  we  respectively  represent,  and  that  tlie 
ITnion  shall  be  perpetual.  In  witness  whereof,  we  have  hereunto 
set  our  hands  in  Congress.  Done  at  Philadelphia,  in  the  State 
of  Pennsylvania,  the  ninth  day  of  July,  in  the  year  of  our  Lord 
1778,*  and  In  the  third  year  of  the  Independence  of  America, 


APPENDIX  B 

The  Constitution  of  the  United  States  of  America, 
uiTii  THE  Seveiial  Amendments 

Printed  from  the  official  records,  in  conformity  with  the  original 
orthography. 


CONSTITUTION    OF    THE    UNITED    STATES    OF    AMERICA. 

We  the  PEorLE  of  the  United  States,  in  Order  to  form  a  more 
perfect  Union,  establish  Justice,  insure  domestic  Tranquility, 
provide  for  the  common  defence,  promote  the  general  Welfare, 
and  secure  the  Blessings  of  Liberty  to  ourselves  and  our  Posterity, 
do  ordain  and  establish  this  Constitution  for  the  United  States 
of  America. 

Article  I. 

Section  1. — All  legislative  Powers  herein  granted  shall  be 
vested  in  a  Congress  of  the  United  States,  which  shall  consist  of 
a  Senate  and  House  of  Representatives. 

Section  2. — The  House  of  Representatives  shall  be  composed  oi 
Members  chosen  every  second  Year  by  the  People  of  the  several 
States,  and  the  Electors  in  e^ch  State  shall  have  the  Qualifications 
requisite  for  Electors  of  the  most  numerous  Branch  of  tlie  State 
Legislature. 

No  Person  shall  be  a  Representative  who  shall  not  have  attained 
to  the  Age  of  twenty-five  Years,  and  been  seven  Years  a  Citizen 

•Only  ten  states  took  action  upon  the  Articles  at  this  time. 
New  Jersey,  Delaware,  and  Maryland  did  not  ratify  them  until 
later. 

21 


333  Constitutional  Law 

of  the  United   States,   and  who  shall   not,  when  elected,  be  an 
Inhabitant  of  that  State  in  which  he  shall  be  chosen. 

Representatives  and  direct  Taxes  shall  be  apportioned  among 
the  several  States  which  may  be  included  within  this  Union, 
according  to  their  respective  Numbers,  which  shall  be  determined 
by  adding  to  the  whole  Number  of  free  Persons,  including  those 
bound  to  Service  for  a  Term  of  Years,  and  excluding  Indians  not 
taxed,  three-fifths  of  all  other  Persons.  The  actual  Enumeration 
shall  be  made  within  three  Years  after  the  first  Meeting  of  the 
Congress  of  the  United  States,  and  within  every  subsequent  Term 
of  ten  Years,  in  such  Manner  as  they  shall  by  Law  direct.  The 
Number  of  Representatives  shall  not  exceed  one  for  every  thirty 
Thousand,  but  each  State  shall  have  at  Least  one  Representative; 
and  until  such  enumeration  shall  be  made,  the  State  of  New  Hamp- 
shire shall  be  entitled  to  chuse  three,  Massachusetts  eight,  Rhode 
Island  and  Providence  Plantations  one,  Connecticut  five.  New  York 
six,  New  Jersey  four,  Pennsylvania  eight,  Delaware  one,  Mary- 
land six,  Virginia  ten,  North  Carolina  five.  South  Carolina  five, 
and  Georgia  three. 

When  vacancies  happen  in  the  Representation  from  any  State, 
the  Executive  Authority  thereof  shall  issue  Writs  of  Election  to 
fill  such  Vacancies. 

The  House  of  Representatives  shall  chuse  their  Speaker  and 
other  Officers;  and  shall  have  the  sole  Power  of  Impeachment. 

Section  3.— The  Senate  of  the  United  States  shall  be  composed  of 
two  Senators  from  each  State,  chosen  by  the  Legislature  thereof, 
for  six  Years;  and  each  Senator  shall  have  one  Vote. 

Immediately  after  they  shall  be  assembled  in  Consequence 
of  the  first  Election,  they  shall  be  divided  as  equally  as  may  be 
into  three  Classes.  The  Seats  of  the  Senators  of  the  first  Class 
shall  be  vacated  at  the  Expiration  of  the  second  Year,  of  the 
second  Class  at  the  Expiration  of  the  fourth  Year,  and  of  the 
third  Class  at  the  Expiration  of  the  sixth  Year,  so  that  one  third 
may  be  chosen  every  second  Year;  and  if  Vacancies  happen  by 
Resignation,  or  otherwise,  during  the  Recess  of  the  Legislature 
of  any  State,  the  Executive  thereof  may  make  temporary  Appoint- 
ments until  the  next  Meeting  of  the  Legislature,  which  shall  then 
fill  such  Vacancies. 

No  Person  shall  be  a  Senator  who  shall  not  have  attained  to 
the  Age  of  thirty  Years,  and  been  nine  Years  a  Citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  Inhabitant 
of  that  State  for  which  he  shall  be  chosen. 


Appendices  323 

The  Vice  President  of  the  United  States  shall  be  President 
of  the  Senate,  but  shall  have  no  Vote,  unless  they  be  equally 
divided. 

The  Senate  shall  chuse  their  other  Officers,  and  also  a  President 
pro  tempore,  in  the  Absence  of  the  Vice  President,  or  when  he 
shall  exercise  the  OflTce  of  President  of  the  United  States. 

The  Senate  shall  have  the  sole  Power  to  try  all  Impeachments. 
When  sitting  for  that  Purpose,  they  shall  be  on  Oath  or  Affirmation. 
When  the  President  of  the  United  States  is  tried,  the  Chief  Justice 
shall  preside;  And  no  Person  shall  be  convicted  without  the  Con- 
currence of  two  thirds  of  the  Members  present. 

Judgment  in  Cases  of  Impeachment  shall  not  extend  further 
than  to  removal  from  Office,  and  disqualification  to  hold  and  enjoy 
any  Office  of  honor.  Trust  or  Profit  under  the  United  States:  but 
the  Party  convicted  shall  nevertheless  be  liable  and  subject  to 
Indictment,  Trial,  Judgment  and  Punishment,  according  to  Law. 

Section  4. — The  Times,  Places  and  Manner  of  holding  Elections 
for  Senators  and  Representatives,  shall  be  prescribed  in  each 
State  by  the  Legislature  thereof;  but  the  Congress  may  at  any 
time  by  law  make  or  alter  such  Regulations,  except  as  to  the 
Places  of  chusing  Senators. 

The  Congress  shall  assemble  at  least  once  in  every  Year,  and 
such  Meeting  shall  be  on  the  first  Monday  in  December,  unless 
they  shall  by  Law  appoint  a  different  Day. 

Section  5. — Each  House  shall  be  the  Judge  of  the  Elections, 
Returns  and  Qualifications  of  its  own  Members,  and  a  Majority 
of  each  shall  constitute  a  Quorum  to  do  Business;  but  a  smaller 
Number  may  adjourn  from  day  to  day,  and  may  be  authorized  to 
compel  the  Attendance  of  absent  Members,  in  such  Manner,  and 
under  such  Penalties  as  each  House  may  provide. 

Each  House  may  determine  the  Rules  of  its  Proceedings,  punish 
its  Members  for  disorderly  Behavior,  and,  with  the  Concurrence 
of  two  thirds,  expel  a  Member. 

Each  House  shall  keep  a  Journal  of  its  Proceedings,  and  from 
time  to  time  publish  the  same,  excepting  such  Parts  as  may  In 
their  Judgment  require  Secrecy;  and  the  Yeas  and  Nays  of  the 
Members  of  either  House  on  any  question  shall,  at  the  Desire  of 
one  fifth  of  those  Present,  be  entered  on  the  Journal. 

Neither  House,  during  the  Session  of  Congress,  shall,  witliout 
the  Consent  of  the  other,  adjourn  for  more  than  three  days,  nor 
to  any  other  Place  than  that  in  which  the  tv,-o  Houses  shall  be 
sitting. 


324  Constitutional  Law 

Section  6. — The  Senators  and  Representatives  sliall  receive  a 
Compensation  for  their  Services,  to  be  ascertained  by  Law,  and 
paid  out  of  the  Treasury  of  the  United  States.  They  shall  in  all 
Cases,  except  Treason,  Felony  and  Breach  of  the  Peace,  be  privi- 
leged from  Arrest  during  their  Attendance  at  the  Session  of  their 
respective  Houses,  and  in  going  to  and  returning  from  the  same; 
and  for  any  Speech  or  Debate  in  either  House,  they  shall  not  be 
questioned  in  any  other  Place. 

No  Senator  or  Representative  shall,  during  the  Time  for  which 
he  was  elected,  be  appointed  to  any  civil  OfEce  under  the  Authority 
of  the  United  States,  which  shall  have  been  created,  or  the  Emolu- 
ments whereof  shall  have  been  encreased  during  such  time;  and 
no  Person  holding  any  office  under  the  United  States,  shall  be  a 
member  of  either  House  during  his  Continuance  in  Office. 

Section  7. — All  Bills  for  raising  Revenue  shall  originate  In  the 
House  of  Representatives;  but  the  Senate  may  propose  or  concur 
with  Amendments  as  on  other  Bills. 

Every  Bill  which  shall  have  passed  the  House  of  Representatives 
and  the  Senate,  shall,  before  it  become  a  Law,  be  presented  to  the 
President  of  the  United  States;  If  he  approve  he  shall  sign  it, 
but  if  not  he  shall  return  it,  with  his  Objections  to  that  House 
in  which  it  shall  have  originated,  who  shall  enter  the  Objections 
at  large  on  their  Journal,  and  proceed  to  reconsider  it.  If  after 
such  Reconsideration  two  thirds  of  that  House  shall  agree  to 
pass  the  Bill,  it  shall  be  sent,  together  with  the  Objections,  to  the 
other  House,  by  which  it  shall  likewise  be  reconsidered,  and  if 
approved  by  two  thirds  of  that  House,  it  shall  become  a  Law. 
But  in  all  such  Cases  the  Votes  of  both  Houses  shall  be  determined 
by  yeas  and  Nays,  and  the  Names  of  the  Persons  voting  for  and 
against  the  Bill  sliall  be  entered  on  the  Journal  of  each  House 
respectively.  If  any  Bill  shall  not  be  returned  by  the  President 
within  ten  Days  (Sundays  excepted)  after  it  shall  have  been  pre- 
sented to  him,  the  Same  shall  be  a  Law,  in  like  Manner  as  if  he 
had  signed  it,  unless  the  Congress  by  their  Adjournment  prevent 
its  Return,  in  which  Case  it  shall  not  be  a  Law. 

Every  Order,  Resolution,  or  Vote  to  which  the  Concurrence 
of  the  Senate  and  House  of  Representatives  may  be  necessary 
(except  on  a  question  of  Adjournment)  shall  be  presented  to  the 
President  of  the  United  States;  and  before  the  Same  shall  take 
Effect,  shall  be  approved  by  him,  or  being  disapproved  by  him, 
shall  be  repassed  by  two  thirds  of  the  Senate  and  House  of  Repre- 


Appendices  G'i.'j 

sentatives,  according  to  the  Rules  and  Limitations  prescribed  in 
the  Case  of  a  Bill. 

Section  8. — The  Congress  shall  have  Power  To  Lay  and  collect 
Taxes,  Duties,  Imposts  and  Excises,  to  pay  the  Debts  and  provide 
for  the  common  Defence  and  general  Welfare  of  the  United  States; 
but  all  Duties,  Imposts  and  Excises  shall  be  uniform  throughout 
the  United  States; 

To  borrow  money  on  the  credit  of  the  United  States; 

To  regulate  Commerce  with  foreign  Nations,  and  among  the 
several  States,  and  with  the  Indian  Tribes; 

To  establish  an  uniform  Rule  of  Naturalization,  and  uniform 
Laws,  on  the  subject  of  Bankruptcies  throughout  the  United 
States; 

To  coin  Money,  regulate  the  Value  thereof,  and  of  foreign  Coin, 
and  fix  the  Standard  of  Weights  and  Measures; 

To  provide  for  the  punishment  of  counterfeiting  the  Securities 
and  current  Coin  of  the  United  States; 

To  establish  Post  Offices  and  post  Roads; 

To  promote  the  Progress  of  Science  and  useful  Arts,  by  securing 
for  limited  Times  to  Authors  and  Inventors  the  exclusive  Right 
to  their  respective  Writings  and  Discoveries; 

To  constitute  Tribunals  inferior  to  the  supreme  Court; 

To  define  and  punish  Piracies  and  Felonies  committed  on  the 
high  Seas,  and  Offences  against  the  Law  of  Nations; 

To  declare  War,  grant  Letters  of  Marque  and  Reprisal,  and 
make  Rules  concerning  Captures  on  Land  and  Water; 

To  raise  and  support  Armies,  but  no  Appropriation  of  Money 
to  that  Use  shall  be  for  a  longer  Term  than  two  Years; 

To  provide  and  maintain  a  Navy; 

To  make  Rules  for  the  Government  and  Regulation  of  the  land 
and  naval  Forces; 

To  provide  for  calling  forth  the  Militia  to  execute  the  Laws 
of  the  Union,  suppress  Insurrections  and  repel  Invasions; 

To  provide  for  organizing,  arming,  and  disciplining,  the  Militia, 
and  for  governing  such  Part  of  them  as  may  be  employed  in  the 
Service  of  the  Unitod  States,  reserving  to  the  States  respectively, 
the  Appointment  of  the  Officers,  and  the  Authority  of  training 
the  IMilitia  according  to  the  discipline  prescribed  by  Congress; 

To  exercise  exclusive  Legislation  in  all  Cases  whatsoever,  over 
such  District  (not  exceeding  ten  Miles  square)  as  may,  by  Cession 
of  particular  States,  and  the  Acceptance  of  Congress,  become  the 


326  Constitutional  Law 

Seat  of  the  Government  of  the  United  States,  and  to  exercise  like 
Authority  over  all  Places  purchased  by  the  Consent  of  the  Legis- 
lature of  the  State  in  which  the  Same  shall  be,  for  the  Erection  of 
Forts,  Magazines,  Arsenals,  dock-Yards,  and  other  needful  Build- 
ings;— And 

To  make  all  Laws  which  shall  be  necessary  and  proper  for  carry- 
ing into  Execution  the  foregoing  Powers,  and  all  other  Powers 
vested  by  this  Constitution  in  the  Government  of  the  United 
States,  or  in  any  Department  or  Officer  thereof. 

Section  9. — The  Migration  or  Importation  of  such  Persons  as 
any  of  the  States  now  existing  shall  think  proper  to  admit,  shall 
not  be  prohibited  by  the  Congress  prior  to  the  Year  one  thousand 
eight  hundred  and  eight,  but  a  Tax  or  duty  may  be  imposed  on 
such  Importation,  not  exceeding  ten  dollars  for  each  Person. 

The  Privilege  of  the  Writ  of  Habeas  Corpus  shall  not  be  sus- 
pended, unless  when  in  Cases  of  Rebellion  or  Invasion  the  public 
Safety  may  require  it. 

No  Bill  of  Attainder  or  ex  post  facto  Law  shall  be  passed. 

No  Capitation,  or  other  direct.  Tax  shall  be  laid,  unless  in  Pro- 
portion to  the  Census  or  Enumeration  herein  before  directed  to 
be  taken. 

No  Tax  or  Duty  shall  be  laid  on  Articles  exported  from  any 
State. 

No  Preference  shall  be  given  by  any  Regulation  of  Commerce 
or  Revenue  to  the  Ports  of  one  State  over  those  of  another:  nor 
shall  vessels  bound  to,  or  from,  one  State,  be  obliged  to  enter, 
clear  or  pay  Duties  in  another. 

No  Money  shall  be  drawn  from  the  Treasury,  but  in  Consequence 
of  Appropriations  made  by  Law;  and  a  regular  Statement  and 
Account  of  the  Receipts  and  Expenditures  of  all  public  Money  shall 
be  published  from  time  to  time. 

No  Title  of  Nobility  shall  be  granted  by  the  United  States:  And 
no  Person  holding  any  Office  of  Profit  or  Trust  under  them,  shall, 
without  the  consent  of  the  Congress,  accept  of  any  present,  Emolu- 
ment, Office,  or  Title,  of  any  kind  whatever,  from  any  King,  Prince, 
or  foreign  State. 

Section  10. — No  State  shall  enter  into  any  Treaty,  Alliance,  or 
Confederation;  grant  Letters  of  Marque  and  Reprisal;  coin  Money; 
emit  Bills  of  Credit;  make  any  Thing  but  gold  and  silver  Coin  a 
Tender  in  Payment  of  Debts;  pass  any  Bill  of  Attainder,  ex  post 
facto  Law,  or  Law  impairing  the  Obligation  of  Contracts,  or  grant 
any  Title  of  Nobility. 


Appendices  327 

No  State  shall,  without  the  Consent  of  the  Congress,  lay  any 
Imposts  or  Duties  on  Imports  or  Exports,  except  what  may  be 
absolutely  necessary  for  executing  it's  inspection  Laws:  and  the 
net  Produce  of  all  Duties  and  Imposts,  laid  by  any  State  on  Im- 
ports or  Exports,  shall  be  for  the  Use  of  the  Treasury  of  tlie 
United  States;  and  all  such  Laws  shall  be  subject  to  the  Revision 
and  Controul  of  the  Congress. 

No  State  shall,  without  the  Consent  of  Congress,  lay  any  Duty 
of  Tonnage,  keep  Troops,  or  Ships  of  War  in  time  of  Peace,  enter 
Into  any  Agreement  or  Compact  with  another  State,  or  with  a 
foreign  Power,  or  engage  in  War,  unless  actually  invaded,  or  in 
such  imminent  Danger  as  will  not  admit  of  delay. 

Article  II. 

Section  1. — The  executive  Power  shall  be  vested  in  a  President 
of  the  United  States  of  America.  He  shall  hold  his  Office  during 
the  Term  of  four  Years,  and,  together  with  the  Vice  President, 
chosen  for  the  same  Term,  be  elected,  as  follows 

Each  State  shall  appoint,  in  such  Manner  as  the  Legislature 
thereof  may  direct,  a  Number  of  Electors,  equal  to  the  whole 
Number  of  Senators  and  Representatives  to  which  the  State  may 
be  entitled  in  the  Congress:  but  no  Senator  or  Representative,  or 
Person  holding  an  Office  of  Trust  or  Profit  under  the  United  States, 
shall  be  appointed  an  Elector. 

[Repealed  by  Xllth  Amendment,  page  336.] 

The  Electors  shall  meet  in  their  respective  States,  and  vote  by 
Ballot  for  two  Persons,  of  whom  one  at  least  sliall  not  be  an  In- 
habitant of  the  same  State  witli  themselves.  And  they  shall  make 
a  List  of  all  the  Persons  voted  for,  and  of  the  Number  of  Votes  for 
each;  which  List  they  shall  sign  and  certify,  and  transmit  sealed 
to  the  Seat  of  the  Government  of  the  United  States,  directed  to 
the  President  of  the  Senate.  The  President  of  the  Senate  shall, 
in  the  Presence  of  the  Senate  and  Mouse  of  Representatives,  open 
all  the  Certificates,  and  the  Votes  shall  then  be  counted.  The 
Person  having  tlie  greatest  Number  of  Votes  shall  be  tiie  President, 
If  such  Number  be  a  Majority  of  the  whole  Number  of  Electors 
appointed;  and  if  there  be  more  than  one  who  have  such  Major- 
ity, and  have  an  equal  Number  of  Votes,  then  the  House  of  Repre- 
sentatives shall  immediately  chuse  by  Ballot  one  of  them  for 
President:  and  if  no  Person  have  a  Majority,  then  from  the  five 
highest  on  the  List,  the  said  House  shall  in  like  Manner  chuse 
the  President.  But  in  chusing  the  President,  the  Votes  shall  be 
taken  by  States,  the  Representation  from  each  State  having  one 


328  Constitutional  Law 

vote;  A  quorum  for  this  Purpose  shall  consist  of  a  Member  or 
Members  from  two  thirds  of  the  States,  and  a  Majority  of  all  the 
States  shall  be  necessary  to  a  Choice.  In  every  Case,  after  the 
Choice  of  the  President,  the  Person  having  the  greatest  Number 
of  Votes  of  the  Electors  shall  be  the  Vice  President.  But  if  there 
should  remain  two  or  more  who  have  equal  Votes,  the  Senate 
shall  chuse  from  them  by  Ballot  the  Vice  President. 

The  Congress  may  determine  the  Time  of  chusing  the  Electors, 
and  the  Day  on  which  they  shall  give  their  Votes;  which  Day  shall 
be  the  same  throughout  the  United  States. 

No  Person  except  a  natural  born  Citizen,  or  a  Citizen  of  the 
United  States,  at  the  time  of  the  Adoption  of  this  Constitution, 
shall  be  eligible  to  the  Office  of  President;  neither  shall  any  person 
be  eligible  to  that  Office  who  shall  not  have  attained  to  the  Age 
of  thirty  five  Years,  and  been  fourteen  Years  a  Resident  within 
the  United  States. 

In  Case  of  the  Removal  of  the  President  from  Office,  or  of  his 
Death,  Resignation,  or  Inability  to  discharge  the  Powers  and 
Duties  of  the  said  Office,  the  Same  shall  devolve  on  the  Vice  Presi- 
dent, and  the  Congress  may  by  Law  provide  for  the  Case  of  Re- 
moval, Death,  Resignation  or  Inability,  both  of  the  President  and 
Vice  President,  declaring  what  Officer  shall  then  act  as  President, 
and  such  Officer  shall  act  accordingly,  until  the  Disability  be 
removed,  or  a  President  shall  be  elected. 

The  President  shall,  at  stated  Times,  receive  for  his  Services, 
a  Compensation,  which  shall  neither  be  encreased  nor  diminished 
during  the  Period  for  which  he  shall  have  been  elected,  and  he 
shall  not  receive  within  that  Period  any  other  Emolument  from 
the  United  States,  or  any  of  them. 

Before  he  enter  on  the  Execution  of  his  Office,  he  shall  take  the 
following  Oath  or  Affirmation: — I  do  solemnly  swear  (or  affirm) 
that  I  will  faithfully  execute  the  Office  of  President  of  the  United 
States,  and  will  to  the  best  of  my  Ability,  preserve,  protect  and 
defend  the  Constitution  of  the  United  States. 

Section  2. — The  President  shall  be  Commander  in  Chief  of  the 
Army  and  Navy  of  the  United  States,  and  of  the  Militia  of  the 
several  States,  when  called  into  the  actual  Service  of  the  United 
States;  he  may  require  the  Opinion,  in  writing  of  the  principal 
Officer  in  each  of  the  executive  Departments,  upon  any  Subject 
relating  to  the  Duties  of  their  respective  Offices,  and  he  shall  have 


Appendices  329 

Power  to  grant  Reprieves  and  Pardons,  for  Offences  against  the 
United  States,  except  in  Cases  of  Impeachment. 

He  shall  have  Power,  by  and  witli  the  Advice  and  Consent  of 
tiie  Senate,  to  make  Treaties,  provided  two  thirds  of  the  Senators 
present  concur;  and  he  shall  nominate,  and  by  and  with  the 
Advice  and  Consent  of  the  Senate,  shall  appoint  Ambassadors, 
other  public  Ministers  and  Consuls,  Judges  of  the  supreme  Court, 
and  all  other  Officers  of  the  United  States,  whose  Appointments 
are  not  herein  otherwise  provided  for,  and  which  shall  be  estab- 
lished by  Law:  but  the  Congress  may  by  Law  vest  the  Appointment 
of  such  inferior  Officers,  as  they  think  proper,  in  the  President 
alone,  in  the  Courts  of  Law,  or  in  the  Heads  of  Departments. 

The  President  shall  have  Power  to  fill  up  all  Vacancies  that  may 
happen  during  the  Recess  of  the  Senate,  by  granting  Commissions 
which  shall  expire  at  the  End  of  their  next  Session. 

Section  3. — He  shall  from  time  to  time  give  to  the  Congress 
Information  of  the  State  of  the  Union,  and  recommend  to  their 
Consideration  such  Measures  as  he  shall  judge  necessary  and 
expedient;  he  may,  on  extraordinary  Occasions,  convene  both 
Houses,  or  either  of  them,  and  in  Case  of  Disagreement  between 
them,  with  Respect  to  the  Time  of  Adjournment,  he  may  adjourn 
them  to  such  Time  as  he  shall  think  proper;  he  shall  receive 
Ambassadors  and  other  public  Ministers;  he  shall  take  Care  that 
the  laws  be  faithfully  executed,  and  shall  Commission  all  the 
Officers  of  the  United  States. 

Section  4.— The  President,  Vice  President  and  all  civil  Officers 
of  the  United  States,  shall  be  removed  from  Office  on  Impeachment 
for,  and  Conviction  of,  Treason,  Bribery,  or  other  high  Crimes  and 
Misdemeanors. 

Articij:  III. 

Section  1.— The  judicial  Power  of  the  United  States,  shall  be 
vested  in  one  supreme  Court,  and  in  such  inferior  Courts  as  the 
Congress  may  from  time  to  time  ordain  and  establish.  The 
Judges,  both  of  the  supreme  and  inferior  Courts,  shall  hold  their 
Offices  during  good  Behaviour,  and  shall,  at  stated  Times,  receive 
for  their  Services,  a  Compensation,  which  shall  not  be  diminished 
during  their  Continuance  in  Office. 

Section  2.— The  judicial  Power  shall  extend  to  all  Cases,  in 
Law   and   Equity,   arising  under   this  Constitution,  the  laws  of 


330  Constitutional  Law 

the  United  States,  and  Treaties  made,  or  which  shall  be  made, 
under  their  Authority; — to  all  Cases  affecting  Ambassadors,  other 
public  Ministers  and  Consuls; — to  all  Cases  of  admiralty  and 
maritime  Jurisdiction; — to  Controversies  to  which  the  United 
States  shall  be  a  Party; — to  Controversies  between  two  or  more 
States; — between  a  State  and  Citizens  of  another  State; — be- 
tween Citizens  of  different  States, — between  Citizens  of  the  same 
State  claiming  Lands  under  Grants  of  different  States,  and  be- 
tween a  State,  or  the  Citizens  thereof,  and  foreign  States,  Citizens 
or  Subjects. 

In  all  Cases  affecting  Ambassadors,  other  public  Ministers  and 
Consuls,  and  those  in  which  a  State  shall  be  Party,  the  supreme 
Court  shall  have  original  Jurisdiction.  In  all  the  other  Cases  before 
mentioned,  the  supreme  Court  shall  have  appellate  Jurisdiction, 
both  as  to  Law  and  Fact,  with  such  Exceptions,  and  under  such 
Regulations  as  the  Congress  shall  make. 

The  Trial  of  all  Crimes,  except  in  Cases  of  Impeachment,  shall 
be  by  Jury;  and  such  Trial  shall  be  held  in  the  State  where  the 
said  Crimes  shall  have  been  committed;  but  when  not  committed 
within  any  State,  the  Trial  shall  be  at  such  Place  or  Places  as  the 
Congress  may  by  Law  have  directed. 

Section  3. — Treason  against  the  United  States,  shall  consist  only 
in  levying  War  against  them,  or  in  adhering  to  their  Enemies, 
giving  them  Aid  and  Comfort.  No  Person  shall  be  convicted  of 
Treason  unless  on  the  Testimony  of  two  Witnesses  to  the  same 
overt  Act,  or  on  Confession  in  open  Court. 

The  Congress  shall  have  Power  to  declare  the  Punishment  of 
Treason,  but  no  Attainder  of  Treason  shall  work  Corruption  of 
Blood,  or  Forfeiture  except  during  the  Life  of  the  Person  attainted. 

Article  IV  * 

Section  1. — Full  Faith  and  Credit  shall  be  given  in  each  State 
to  the  public  Acts,  Records,  and  judicial  Proceedings  of  every 

*  Cf.  Art.  of  Confederation; 

"Art.  IV.  The  better  to  secure  and  perpetuate  mutual  friend- 
ship and  intercourse  among  the  people  of  the  different  states  in 
this  union,  the  free  inhabitants  of  each  of  these  states,  paupers, 
vagabonds,  and  fugitives  from  justice  excepted,  shall  be  entitled 
to  all  privileges  and  immunities  of  free  citizens  in  the  several 
states;  and  the  people  of  each  state  shall  have  free  ingress  and 


Appexdices  331 

other  State.  And  the  Congress  may  by  general  Laws  prescribe 
the  Manner  in  which  such  Acts,  Records  and  Proceedings  shall 
be  proved,  and  the  Effect  thereof. 

Section  2. — The  Citizens  of  each  State  shall  be  entitled  to  all 
Privileges  and  Immunities  of  Citizens  in  the  several  States. 

A  Person  charged  in  any  State  with  Treason,  Felony,  or  other 
Crime,  who  shall  flee  from  Justice,  and  be  found  in  anotlier  State, 
shall  on  Demand  of  the  executive  Authority  of  tlie  State  from 
which  he  fled,  be  delivered  up,  to  be  removed  to  the  State  having 
Jurisdiction  of  the  Crime. 

No  Person  held  to  Service  or  Labour  in  one  State,  under  the 
Laws  thereof,  escaping  into  another,  shall,  in  Consequence  of  any 
Law  or  Regulation  therein,  be  discharged  from  such  Service  or 
Labour,  but  shall  be  delivered  up  on  Claim  of  the  Party  to  whom 
sucli  Service  or  Labour  may  be  due. 

Section  3. — New  States  may  be  admitted  by  the  Congress  into 
tliis  Union;  but  no  new  State  shall  be  formed  or  erected  within 
the  Jurisdiction  of  any  other  State;  nor  any  State  be  formed  by 
tlie  Junction  of  two  or  more  States,  or  Parts  of  States,  without  the 
Consent  of  the  Legislatures  of  the  States  concerned  as  well  as  of 
the  Congress. 

The  Congress  shall  have  Power  to  dispose  of  and  make  all  need- 
ful Rules  and  Regulations  respecting  the  Territory  or  other  Prop- 
erty belonging  to  the  United  States;  and  nothing  in  this  Consti- 
tution shall  be  so  construed  as  to  Prejudice  any  Claims  of  the 
United  States,  or  of  any  particular  State. 

egress  to  and  from  any  other  state,  and  shall  enjoy  theroin  all  tlie 
privileges  of  trade  and  commerce,  subject  to  the  same  duties,  impo- 
sitions, and  restrictions  as  the  inliabitants  thereof  respectively, 
provided  that  such  restriction  shall  not  extend  so  far  as  to  prevent 
the  removal  of  property  imported  into  any  state,  to  any  other 
state  of  which  tlie  Owner  is  an  inluibitant,  provided  also  that  no 
imposition,  duties  or  restriction,  shall  be  laid  by  any  state,  on  the 
property  of  the  Ignited  States,  or  either  of  tliem. 

If  any  person  guilty  of,  or  charged  witli  treason,  felony,  or  othor 
high  misdemeanor  in  any  state,  shall  floe  from  Jusiice.  and  be 
found  in  any  of  the  united  statrs,  he  shall  upon  demand  of  the 
Governor  or  executive  power,  of  the  state  from  which  he  fled,  be 
delivered  up  and  removed  to  the  state  having  jurisdiction  of  his 
offence. 

Full  faith  and  credit  shall  be  given  in  each  of  these  states  to 
the  records,  acts  and  judicial  proceedings  of  tiie  Courts  and 
magistrates  of  every  other  state." 


332  CONSTITUTIOXAL   LaW 

Section  4. — The  United  States  shall  guarantee  to  every  State  in 
this  I^nion  a  Republican  Form  of  Government,  and  shall  protect 
each  of  them  against  Invasion;  and  on  Application  of  the  Legis- 
lature, or  of  the  Executive  (when  the  Legislature  cannot  be  con- 
vened)   against  domestic  Violence. 

Article  V. 

The  Congress,  wh3never  two  thirds  of  both  Houses  shall  deem 
it  necessary,  shall  propose  Amendments  to  this  Constitution,  or, 
on  the  Application  of  the  Legislatures  of  two  thirds  of  the  several 
States,  shall  call  a  Convention  for  proposing  Amendments,  which, 
in  either  Case,  shall  be  valid  to  all  Intents  and  Purposes,  as  Part 
of  this  Constitution,  when  ratified  by  the  Legislatures  of  three 
fourths  of  the  several  States,  or  by  Conventions  in  three  fourths 
thereof,  as  the  one  or  the  other  Mode  of  Ratification  may  be  pro- 
posed by  the  Congress;  Provided  that  no  Amendment  which  may 
be  made  prior  to  the  Year  One  thousand  eight  hundred  and  eight 
shall  in  any  Manner  affect  the  first  and  fourth  Clauses  in  the 
Ninth  Section  of  the  first  Article;  and  that  no  State,  without  its 
Consent,  shall  be  deprived  of  its  equal  Suffrage  in  the  Senate. 

Article  VI. 

All  Debts  contracted  and  Engagements  entered  into,  before  the 
Adoption  of  this  Constitution,  shall  be  as  valid  against  the  United 
Statei!  under  this  Constitution,  as  under  the  Confederation. 

This  Constitution,  and  the  Laws  of  the  United  States  which 
shall  be  made  in  Pursuance  thereof;  and  all  Treaties  made,  or 
which  shall  be  made,  under  the  Authority  of  the  United  States, 
shall  be  the  supreme  Law  of  the  Land;  and  the  Judges  in  every 
State  shall  be  bound  thereby,  any  Thing  in  the  Constitution  or 
Laws  of  any  State  to  the  Contrary  notwithstanding. 

The  Senators  and  Representatives  before  mentioned,  and  the 
Members  of  the  several  State  Legislatures,  and  all  executive  and 
judicial  Officers,  both  of  the  United  States  and  of  the  several 
States,  shall  be  bound  by  Oath  or  Affirmation,  to  support  this  Con- 
stitution ;  but  no  religious  Test  shall  ever  be  required  as  a  Quali- 
fication to  any  Office  or  public  Trust  under  the  United  States. 


Appendices 


333 


Articlk  VII. 

The  Ratification  of  the  Conventions  of  nine  States,  shall  be 
sufficient  for  the  Establishment  of  this  Constitution  between  the 
States  so  ratifying  the  Same. 

Done  in  Convention  by  the  Unanimous  Consent  of  the  States 
present  the  Seventeenth  Day  of  September  in  the  Year  of  our 
Lord  one  thousand  seven  hundred  and  Eighty  seven  and  of  the 
Independence  of  the  United  States  of  America  the  Twelfth. 

In  Witness  whereof  We  have  hereunto  subscribed  our  Names. 

G":   "Washington 

Presidt.  and  deputy  from  Virginia. 


'New  Hampshire 

Massachusetts 

Connecticut 
New  York 

New  Jersey 


Pennsylvania 

Delaware 

Maryland 

Virginia 
North  Carolina 


fJoiiN  Langdon 
\NiciiOLAS  Oilman 

JNaTHAMEL  GORllASI 

\RuFus  King 

rW.M.  Saml.  Johnson 

\KOGEB  SiIEKMAN 

Alexander  Hamilton 

{Wll:  Livingston 
David  Brearley 
Wm.  Paterson 
Jon a:   Dayton 

"B.  Franklin 
Thomas  Mifflin 
Robt.  Moiuus 
Geo.  Clymer 
Thos.  Fitzsimmons 
Jared  Ingkrsou. 
James  Wii>on 
Gouv  MOKBIS 

Geo:  Reed 

Gunning  Bepfokh  Jun 

John  Dickinson 

Richard  Ba.ssett 

Jaco:  Bkown 

James  McHenkv 

Dan  of  St.  Thos.  Jenifer 

Danl.  Carroll 
fJoHN  Blair — 
\James  Madison,  Jr. 

Wm.  Bloint 

Rrnin.  Donns  Spaight 

Hu  Williamson 


( 


334  Constitutional  Law 

{J.    RUTLEDGE 
ChAKLES  CoTESWORTH  PmCKNEY 
Charles  Pinckney 
Pierce  Butler 

Georgia  (Y'"'^'^'''  ^""^ 

\Abr.  Baldwin 

Attest  William  Jackson,  Secretary 


AMENDMENTS  OF  THE  CONSTITUTION. 


[Article  I.— 1791.] 
Congress  shall  make  no  law  respecting  an  establishment  of 
religion,  or  prohibiting  the  free  exercise  thereof;  or  abridging 
the  freedom  of  speech,  or  of  the  press;  or  the  right  of  the  people 
peaceably  to  assemble,  and  to  petition  the  Government  for  a 
redress  of  grievances. 

[Article  II.— 1791.] 

A  well  regulated  Militia,  being  necessary  to  the  security  of  a 
free  State,  the  right  of  the  people  to  keep  and  bear  Arms,  shall 
not  be  infringed. 

[Article  III.— 1791.] 

No  Soldier  shall,  in  time  of  peace  be  quartered  in  any  house, 
without  the  consent  of  the  Owner,  nor  in  time  of  war,  but  In  a 
manner  to  be  prescribed  by  law. 

[Article  IV.— 1791.] 

The  right  of  the  people  to  be  secure  In  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures, 
shall  not  be  violated,  and  no  Warrants  shall  issue,  but  upon  prob- 
able cause,  supported  by  Oath  or  affirmation,  and  particularly 
describing  the  place  to  be  searched,  and  the  persons  or  things 
to  be  seized. 


Appendices  335 

[Article  V.— 1791.] 

No  person  shall  be  held  to  answer  for  a  cnpital,  or  otherwise 
infamous  crime,  unless  on  a  presentment  or  indictment  of  a  Grand 
Jury,  except  in  cases  arising  In  the  land  or  naval  forces,  or  In 
the  Militia,  when  in  actual  service  In  time  of  War  or  public 
danger;  nor  shall  any  person  be  subject  for  the  same  offence  to 
be  twice  put  in  jeopardy  of  life  or  limb;  nor  shall  be  compelled  in 
any  Criminal  Case  to  be  a  witness  against  himself,  nor  be  de- 
prived of  life,  liberty,  or  property  without  due  process  of  law; 
nor  shall  private  property  be  taken  for  public  use,  without  just 
compensation. 

[Article  VI.— 1791.] 

In  all  criminal  prosecution,  the  accused  shall  enjoy  the  right 
to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the  State 
and  district  wherein  the  crime  shall  have  been  committed,  which 
district  shall  have  been  previously  ascertained  by  law,  and  to 
be  informed  of  the  nature  and  cause  of  the  accusation;  to  be  con- 
fronted with  the  witnesses  against  him;  to  have  compulsory  proc- 
ess for  obtaining  Witnesses  in  his  favor,  and  to  have  the  Assist- 
ance of  Counsel  for  his  defence. 

[Article  VII.— 1791.] 

In  suits  at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  preserved, 
and  no  fact  tried  by  a  jury  shall  be  otherwise  re-examined  in  any 
Court  of  the  United  States,  than  according  to  the  rules  of  the 
common  law 

[Article  VIII.— 1791.] 

Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed, 
nor  cruel  and  unusual  punishments  inflicted. 

[Article  IX.— 1791.] 

The  enumeration  in  the  Constitution,  of  certain  rights,  shall 
not  be  construed  to  deny  or  disparage  others  retained  by  the 
people. 


336  Constitutional  Kvw 

[Article  X.— 1791.] 

The  powers  not  delegated  to  the  United  States  by  the  Constitu- 
tion, nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States 
respectively,  or  to  the  people.* 

[Article  XL— 1798.] 

The  Judicial  power  of  the  United  States  shall  not  be  construed 
to  extend  to  any  suit  in  law  or  equity,  commenced  or  prosecuted 
against  one  of  the  United  States  by  Citizens  of  another  State,  or 
by  Citizens  or  Subjects  of  any  Foreign  State. 

[Article  XII.— 1804.] 

The  Electors  shall  meet  in  their  respective  states,  and  vote  by 
ballot  for  President  and  Vice-President,  one  of  whom,  at  least, 
shall  not  be  an  inhabitant  of  the  same  state  with  themselves;  they 
shall  name  in  their  ballots  the  person  voted  for  as  President,  and 
in  distinct  ballots  the  person  voted  for  as  Vice-President,  and  they 
shall  make  distinct  lists  of  all  persons  voted  for  as  President, 
and  of  all  persons  voted  for  as  Vice-President,  and  of  the  number 
of  votes  for  each,  which  lists  they  shall  sign  and  certify,  and 
transmit  sealed  to  the  seat  of  the  government  of  the  United 
States,  directed  to  the  President  of  the  Senate; — The  President 
of  the  Senate  shall,  in  the  presence  of  the  Senate  and  House  of 
Representatives,  open  all  the  certificates  and  the  votes  shall  then 
be  counted; — The  person  having  the  greatest  number  of  votes 
for  President,  shall  be  the  President,  if  such  number  be  a  majority 
of  the  whole  number  of  Electors  appointed;  and  if  no  person 
have  such  majority,  then  from  the  persons  having  the  highest 
numbers  not  exceeding  three  on  the  list  of  those  voted  for  as 
President,  the  House  of  Representatives  shall  choose  immediately, 
by  ballot,  the  President.  But  in  choosing  the  President,  the  votes 
shall  be  taken  by  states,  the  representation  from  each  state  having 
one  vote;  a  quorum  for  this  purpose  shall  consist  of  a  member 
or  members  from  two-thirds  of  the  states,  and  a  majority  of  all 
the  states  shall  be  necessary  to  a  choice.     And  if  the  House  of 


*  Cf.  Art.  11  of  the  Articles  of  Confederation.  "  Each  State 
retains  its  sovereignty,  freedom,  and  independence,  and  every 
power,  jurisdiction,  and  right,  which  is  not  by  this  confederation 
expressly  delegated  to  the  United  States  in  Congress  assembled." 


Appendices  337 

Representatives  shall  not  choose  a  President  whenever  the  right 
of  choice  shall  devolve  upon  them,  before  the  fourth  day  of  March 
next  following,  then  the  Vice-President  shall  act  as  President, 
as  in  the  case  of  the  death  or  other  constitutional  disability  of  the 
President.  The  person  having  the  greatest  number  of  votes  as 
Vice-President,  shall  be  the  Vice-President,  if  such  number  be 
a  majority  of  the  whole  number  of  Electors  appointed,  and  if  no 
person  have  a  majority,  then  from  tlie  two  highest  numbers  on 
the  list,  the  Senate  shall  choose  the  Vice-President:  a  quorum  for 
the  purpose  shall  consist  of  two-thirds  of  the  whole  number  of 
Senators,  and  a  majority  of  the  whole  number  shall  be  necessary 
to  a  choice.  But  no  person  constitutionally  ineligible  to  the  office 
of  President  shall  be  eligible  to  that  of  Vice-President  of  the 
United  States. 

[Abticle  XIII.— 1865.] 

Section  1. — Neither  slavery  nor  involuntary  servitude,  except 
as  a  punishment  for  crime  whereof  the  party  shall  have  been  duly 
convicted,  shall  exist  within  the  United  States,  or  any  place 
subject  to  their  jurisdiction. 

Section  2. — Congress  shall  have  power  to  enforce  this  article  by 
appropriate  legislation. 

[Article  XIV.— 1868.] 

Section  1.— All  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  State  wherein  they  reside.  No  State  shall  make 
or  enforce  any  law  which  shall  abridge  the  privileges  or  immuni- 
ties of  citizens  of  the  United  States;  nor  shall  any  State  deprive 
any  person  of  life,  liberty,  or  property,  without  due  process  of  law; 
nor  deny  to  any  person  within  its  jurisdiction  the  equal  protection 
of  the  laws. 

Section  2.— Representatives  shall  be  apportioned  among  the 
several  States  according  to  their  respective  numbers,  counting  the 
whole  number  of  persons  in  each  State,  excluding  Indians  not 
taxed.  But  when  the  right  to  vote  at  any  election  for  tlie  choice 
of  electors  for  President  and  Vice-President  of  tlie  United  States. 
Representatives  in  Congress,  the  Executive  and  Judicial  officers  of 
a  State,  or  the  members  of  the  Legislature  thereof,  is  denied  to 
any  of  the  male  inhabitants  of  sucli  State,  being  twenty-one  years 
22 


338  Constitutional  Law 

of  age,  and  citizens  of  the  United  States,  or  in  any  way  abridged, 
except  for  participation  in  rebellion,  or  other  crime,  the  basis 
of  representation  therein  shall  be  reduced  in  the  proportion 
which  the  number  of  such  male  citizens  shall  bear  to  the  whole 
number  of  male  citizens  twenty-one  years  of  age  in  such  State. 

Section  3.— No  person  shall  be  a  Senator  or  Representative  in 
Congress,  or  elector  of  President  and  Vice-President,  or  hold  any 
office,  civil  or  military,  under  the  United  States,  or  under  any 
State,  who,  having  previously  taken  an  oath,  as  a  member  of 
Congress,  or  as  an  officer  of  the  United  States,  or  as  a  member 
of  any  State  legislature,  or  as  an  executive  or  judicial  officer  of 
any  State,  to  support  the  Constitution  of  the  United  States,  shall 
have  engaged  in  insurrection  or  rebellion  against  the  same,  or 
given  aid  or  comfort  to  the  enemies  thereof.  But  Congress  may 
by  a  vote  of  two-thirds  of  each  House,  remove  such  disability. 

Section  4.— The  validity  of  the  public  debt  of  the  United  States, 
authorized  by  law,  including  debts  incurred  for  payment  of 
pensions  and  bounties  for  services  in  suppressing  insurrection  or 
rebellion,  shall  not  be  questioned.  But  neither  the  United  States 
nor  any  State  shall  assume  or  pay  any  debt  or  obligation  incurred 
in  aid  of  insurrection  or  rebellion  against  the  United  States,  or 
any  claim  for  the  loss  or  emancipation  of  any  slave;  but  all  such 
debts,  obligations  and  claims  shall  be  held  illegal  and  void. 

Section  5. — The  Congress  shall  have  power  to  enforce,  by  ap- 
propriate legislation,  the  provisions  of  this  article. 


[Article  XV.— 1870.] 

Section  1.— The  right  of  citizens  of  the  United  States  to  vote 
shall  not  be  denied  or  abridged  by  the  United  States  or  by  any 
State  on  account  of  race,  color,  or  previous  condition  of  servitude. 

Section  2. — The  Congress  shall  have  power  to  enforce  this  article 
by  appropriate  legislation, 

[Abticle  XVI.— 1913.] 

The  Congress  shall  have  power  to  lay  and  collect  taxes  on 
incomes,  from  whatever  source  derived,  without  apportionment, 
among  the  several  States,  and  without  regard  to  census  or  enumer- 
ation. 


Appendices  339 

[Article  XVII.— 1913.] 

The  Senate  of  the  United  States  shall  be  composed  of  two  Sena- 
tors from  each  State,  elected  by  the  people  thereof,  for  six  years, 
and  each  Senator  shall  have  one  vote.  The  electors  in  each  State 
shall  have  the  qualifications  requisite  for  electors  of  the  most 
numerous  branch  of  the  State  legislature. 

When  vacancies  happen  in  the  representation  of  any  State  in 
the  Senate,  the  executive  authority  of  such  State  shall  issue  writs 
of  election  to  fill  such  vacancies:  Provided,  That  the  legislature 
of  any  State  may  empower  the  executive  thereof  to  make  tempo- 
rary appointments  until  the  people  fill  the  vacancies  by  election 
as  the  legislature  may  direct. 

This  amendment  shall  not  be  so  construed  as  to  affect  the  elec- 
tion or  term  of  office  of  any  Senator  chosen  before  it  becomes 
valid  as  part  of  the  Constitution. 


INDEX 


INDEX 


Adjournment   of   Congress,   64. 
Admiralty  and  maritime  juris- 
diction, 212. 
Admission  of  new  States,  233- 

234. 
Agreements  and  compacts  for- 
bidden, 162. 
Alaska,  government  of,  235. 
Alexander's  (Mrs.)  cotton,  284. 
Aliens,  naturalization  of,  96. 
Almey  v.   California,   147,   160, 

301. 
Ambassadors   and   public   min- 
isters, 194. 
duties  of,  195. 
American   Pub.    Co.   v.   Fisher, 

303. 
Annapolis   Convention,    19,   90. 
Amendments  to  bills,  78. 
Amendments   to   the   Constitu- 
tion: 
methods  of  proposing,  240. 
prior  to  1808,  241. 
possibility  of  further,  242. 
reasons  for,  241. 
Amendments   to   the   Constitu- 
tion: 
1st,  252. 
2d,  254. 
3d.  255. 
4th,  256. 
5th,  257. 
6th,  264. 
7th,   266. 
8th,  269. 
9th,   270. 
10th,  270. 
11th,  271. 
12th,  171-172. 
13th,   272-273. 
14th,  97,  274.  280,  283. 
purpose  of,  281. 


Amendments   to   the   Constitu- 
tion—  (Cont'd). 
15th,  285. 
16th,   286. 
17th.  46. 
Appellate  jurisdiction,   216-217. 
Appointment  to   office,   186-189. 
Appropriations  limited  bv  law, 
149. 
for  the  army,  124-125,  127. 
Archbald,    R.    \V.,    impeached, 

199. 
Army,  power  of  Congress  over, 

124-125. 
Articles   of  Confederation,  Ap- 
pendix A. 
Atkin  V.  Kansas,  309. 
Attainder  of  treason,  220,  222. 

bills  of,  245. 
Attendance,   compelling,   60. 

Bail,  not  to  be  excessive,  269. 
Banknotes,  110. 

Bankruptcy  controlled  by  Con- 
gress, 101-102. 

contrasted    with    Insolvency, 
102. 

law  of  1898.  102. 

results  of,  103. 

State  laws  on,  103. 
Belknap,  Secretary,  Impeached, 

199. 
Bills,  amendments  to,  78-79. 

method  of  passing,  70,  76-79.  ' 

public  and  private,  74-76. 

Introduction  of,  76. 

readings  of.  76.  78. 

"  riders  "  to.  71. 
Bills  for  revenue,  69. 
Bills  of  attainder.  143,  153,  245. 
Bills  of  credit  forbidden,  152. 


344 


Index 


Bills    of   pains    and    penalties, 

143. 
Blake  v.  McClung,  229. 
Blount,     William,     impeached, 

198 
Bonds,  88-89. 

Boyd  V.  United  States,  305. 
Bradwell  v.  Illinois,  309. 
Brown  v.  Maryland,  92,  160. 
Burr,  Aaron,  173. 

Cabinet,  origin  of,  183. 

members  of,  183. 
Capitation  tax  a  direct  tax,  86. 

clause  concerning,  145. 
Captures,  rules  concerning,  124. 
Cases  (see  Leading  Cases). 
Cases   under   the   Constitution, 
213. 
affecting    ambassadors,    etc., 

213-214. 
in  law  and  equity,  214. 
Charters,     distinguished     from 
licenses,  157. 
public  and  private,  155. 
Chase,  Samuel,  impeached,  199. 
Cherokee  Nation  v.  Georgia,  95, 

302. 
Chicago  riots,  239. 
Chinese,   citizenship  of,   98,  99. 
excluded,  99,  135. 
naturalization  of,  275-276. 
Chisholm    v.    Georgia,    271. 
Circuit  court  of  appeals,   204. 
Citizens  defined,  97. 
Chinese,  98. 
who  are,  274. 
Citizens  by  naturalization,  274. 
privileges  and  immunities  of, 

276-277. 
rights  in  other   States,   228. 
Civil  officers  liable  to  impeach- 
ment,  198. 
Senators  and  Representatives 
are  not,  198. 
Clerk  of  the  House.  42. 
Coinage,  acts  of,  106. 

of  money  forbidden,  152. 
Commerce,  intra-  and  interstate, 
91. 
Act  of  1887,  94. 


Commerce —  ( Cont'd ) . 

Federal    regulation    of,    90. 

with    Indian    tribes,   95. 
Commissions    issued    by    Presi- 
dent,   197. 
Committees   in  Congress,  76. 

advantages  of,  77. 

of  the  whole,  77. 

work    of,    77. 
Common   law   defined,   267. 

crimes  at,  268. 

how  modified,  267. 

suits  at,  266,  268. 
Concurrent  resolution,   74,  75. 
Confederation,    Articles   of,    16, 

18,  Appendix  A. 
Conferences  in  Congress,  79. 
Congress,   adjournment  of,   64, 
192. 

character  of,  31. 

compelling  attendance  in,  60. 

Continental,    17,    18. 

has    control    over   land,   etc., 
132,    133. 

journals   of,   63. 

limitations  on,  139-163. 

makes  exceptions  in  appeals, 
217. 

meetings  of,  prescribed,  57. 

military  powers  of,  126. 

named,  58. 

powers  of,  83-136. 

powers  of,  under  the  Articles, 
18. 

special  sessions  of,  192. 

sessions  of,  unequal,  58. 

voting  in,  63. 
Congressmen,  compensation  of, 
64. 

not  liable  for  duress,  62. 

offices  debarred  to,  68. 

scope    of,    49. 

special  privileges  of,  65. 
Constitution   defined.  15. 

amendments  to   (see  Amend- 
ments). 

chronology  of,  9. 

how    ratified,    246. 

of  the  United  States,  Appen- 
dix B. 


Index 


345 


Constitution —  ( Cont'd ) . 

put  in  operation,  22. 

the  supreme   law,   244. 
Consular  courts,  206. 
Consuls,   duties   of,    195,    219. 
Contempts  defined,  62. 

punishment  for,  62. 
Contested   elections,   59. 
Continental  Congress,  17-18. 
Contracts  defined,  153. 

charters  as,  155. 

obligation  of,  153,  154. 
Convention,  Annapolis,  19,  90. 

Constitutional,  20-22. 
Cooper,  Duncan,  pardon  of,  185. 
Copyrights,  116-117. 
Cornell   v.   Coyne,   298. 
Corporations    as    citizens,    228- 

229. 
Counterfeiting  defined.    111. 

power  to  punish.  111. 
Court    of    Claims,    composition 
of,  205. 

function  of,  149. 
Courts,  Circuit  of  Appeals,  204. 

Consular,  206. 

District,  204. 

inferior,  119,  203. 

martial,  206-207. 

may    punish    after    impeach- 
ment, 55. 

military.  127,  206-207. 

of  Claims,   149,   205. 

officers  of,  211. 

of  States,  208. 

of  Territories,  206. 

power  to  establish,  119. 

Supreme,  on  income  tax,  87. 

tenure  of  office  in,  209. 
Crandall  r.  Nevada.  277. 
Crimes     against     the     United 
States,  218. 

at  common  law.  268. 

capital   and    infamous,  258. 

trial  of.  218-219. 
Cruelties    in    punishments    for- 
bidden, 269. 
Cummings  v.  Missouri,  144,  299. 
Currency,    paper,    107. 

kinds  of,  107-110. 


Dartmouth  Coll.  v.  Woodward, 

155,  213,  262. 
Davis  V.  Beason,  252,  305. 
Davis  V.  Packard,  302. 
Day  V.  Micou,  222. 
Debts,  pre-existing,  valid,  243. 

validity  of,   283. 

void    if   contracted    in   rebel- 
lion, 284. 
Diamond    Match    Co.    v.    Onto- 
nagon, 298. 
Dilatory  motions,  64. 
Direct   tax,    8G-87. 
District-attorney,  duties  of,  258. 
District  of  Columbia,  131. 

crimes    in,    219. 
District  Court,  204. 

jurisdiction  of,  205. 

in   admiralty   cases,   212. 
Dreyer  v.  Illinois,  306. 
Duties  of  tonnage,  161. 

States  may  not  levy,  158. 
Due  process  of  law,  261,  278. 

Elections,  acts  of  Congress  re- 
garding.  56. 

certificate  of,  48. 

contested,  59. 

of  the  President,  171-172. 

of  Representatives,  33-34. 

of  Senators,  46. 

State  influence  on,  173. 
Electoral  system,  169-170. 
Electors,    qualifications    of,    33, 

171. 
Elk  V.  Williams,  275.  296. 
Embargo  act,  93.  135. 
Eminent  domain  defined,  262. 

proceedings  under,  263. 
Equity  distinguished  from  law, 

214. 
Executive,  immunity  of,  167. 

departments,  182. 

power,   167. 
Export    duties    forbidden,    158- 

159. 
Ex  post  facto  laws.  144-145. 
Expatriation,  right  of,  98. 
Extradition,  230. 


346 


Index 


Faith  and  credit,  227. 
Federal  courts,  named,  203-204. 
in  harmony  with  State  courts, 

209. 
limitations  of,  217. 
Federalist,  on  titles  of  nobility, 

158. 
on  the  post-office,  112. 
Felonies,    120. 

Filibustering,    defined,    60-61. 
Fines,    excessive,    not   allowed, 

269. 
Fiske,  John,  28. 
Foreign   coin,   value  regulated, 

110. 
Forfeiture  of  property,  223. 
Fort     Leavenworth     R.     R.    v. 

Lowe,  293. 
Fox  V.  Ohio,  112,  260,  297. 
Freedom  of  speech,  66,  252. 
Fugitives    from    justice,   clause 

not  mandatory,  231. 
defined,    230. 
procedure  in  return   of,   230- 

231. 
Fugitives  from  labor,  232. 

Garland,  case  of,  144,  184,  245. 
Geer  v.  Conn.,  159,  295. 
Gibbons   v.   O&den,  91,   93,   140. 
Gold  certificates,  107. 

and   silver,    106. 
Grand    jury,    258,    259. 
Grants  by  States  to  citizens,  156. 

case  of  in  New  Jersey,  15G. 

defined,  156. 
Great  Britain,   constitution  of, 

15. 
Green,  in  re,  302. 
Greenbacks,  108. 
Guam  and  Tutuila,  237. 

Habeas  corpus,  writ  of,   140. 
in  extradition  cases,  231. 
power  to  suspend,  142. 
who  may  issue  writ  of,  143. 
Hamilton,    Alexander,    in    An- 
napolis Convention,  19. 
in  Constitutional  Convention, 
20. 


Hans  V.  Louisiana,  272,  308. 
Hawaii,   government  of,   236. 
Hawker  v.  New  York,  301. 
Heads  of  departments,  183. 
Hayes-Tilden  controversy,  176. 
Holmes  v.  Jennison,  151,  299 
Hill,    David    B.,    Senator    and 

Governor,  68. 
House  of  Representatives: 
officers  of,  42. 
originates   bills   for  revenue, 

69. 
power  of,  to  impeach,  42. 
punishment    of   members    of, 

61. 
punishment    of   members   of, 

for  contempt,  62. 
rules  of,  61. 
speaker  of,  42. 
Humphries,       West      H.,      im- 
peached, 199. 

Impeachment   defined,   42. 
in  the  States,  54. 
offenses  leading  to,  199. 
President  cannot  pardon   in, 

184. 
presiding  officer  in,  54. 
procedure  in  the  House,  43. 
procedure  in  the  Senate,  53. 
punishment  on  conviction  of, 

54,  55,   200. 
purpose  of,  52. 
who  are  liable  to,  198. 
Implied    powers,    doctrine    of, 
133. 
limit  of,  135. 
Imports,  character  of,  160. 
States  may  not  tax,  158. 
Income  tax,  law  of  1913,  287. 
rulings  of  the  Supreme  Court 
on,  87,  286. 
Indians,  citizenship  of,  275. 
commerce  with,  95. 
not  taxed,  37. 

relations    with    the    govern- 
ment, 37. 
Indictment   distinguished   from 

presentment,  258. 
Indirect  taxes,  160. 


Index 


347 


Insolvency,  102. 

Initiative  and  referendum,  72. 

Inspection  laws  allowed  to 
States,  159. 

Interstate  Commerce  Commis- 
sion, 94. 

Involuntary  servitude,  274. 

Johnson,    Andrew,    impeached, 

198. 
Joint  resolutions,  74,  76. 
Journals  of  Congress,  63. 
Judicial  power,  explained,  203. 
Judicial  precedents,  212. 
Judicial    proceedings,    228. 
Jurisdiction,      admiralty      and 
maritime,  212. 
defined,  215. 

of  the   Supreme   Court,    216- 
217. 
Jury,  grand,  258-259. 
need  of  change  in,  218. 
trial  by,  in  suits  at  common 
law,  266. 

Kelly  V.  Rhoads,  293. 

Knox,  P.  C,  a  case  in  point,  69. 

Knox  V.  Lee,  223,  307. 

Lands  for  forts,  132. 
Lange,  ex  parte,  260,  306. 
Lascelles  v.  Georgia,  231,  303. 
Law,  defined,  13. 

cases  in,  and  equity,  214. 

civil,  268. 

common,  267. 

Constitutional,  defined,   13. 

due  process  of,  261. 

equal  protection  of,   278. 

ex  post  facto,  144-145. 

immigration    and    exclusion, 
99. 

Inspection,  159. 

martial   and   military,   128. 

municipal,  13. 

of     presidential     succession, 
179. 

religion  and,  252. 

the  supreme,  244. 
Leading  cases,  293-309. 


Legal  tender,  defined,  105. 
notes,  108. 

restrictions  on  States  regard- 
ing,  153. 

Legislative  grants,  156. 

Legislation,   methods   of,   76-79. 

Legislature,    power    to    relieve 
offenders,  184. 

Letters  of  marque,  123,  151. 

Libel  and  slander,  253. 

Liberty    and    property    defined, 
277-278. 

Louisiana,  admitted  as  a  State, 
234. 
civil  law  in,  268. 

McCulloch  V.  Maryland,  83,  84, 

85,  134,  135. 
McDonald  v.  Mass.,  307. 
McReady  v.  Virginia,  294. 
Majorities,  70. 
Marshall,  John,  83,  135. 
Maxwell  v.  Dow,  261,  306. 
Military  rules,   127. 
Militia,  defined,  128. 

legislation  concerning,  129. 

necessary  to  a  free  State,  254- 
255. 

organization  of,  130. 

service  of,  130. 
Minnesota  v.  Barber,  295. 
Misprision  of  treason,  223. 
Mississippi  r.  Johnson,  168,  197. 
Money,   defined,  104. 

legal  tender,   105. 

method  of  borrowing,  bonds, 
88. 

paper,   107. 

power  to  borrow,  88. 

States  forbidden  to  coin,  152. 

value  of,  regulated,  105-107. 
Monopolies,  279. 
IMorgan  S.  S.  Co.  v.  La.   Board 

of  Health,   300. 
Mormon      Church      r.      Unite! 

States,  2:]5,  300. 
Mrs.    Alexander's    cotton,    284. 

Naturalization,      apparent     ex- 
ception  to   rule  of,   101. 


348 


Index 


Naturalization — (Cont'd). 

a  uniform  rule  of,  100. 

mode  of,  96-97. 

of  communities,  99. 

power  of  Congress  over,  100. 
Navy,   appropriations    for,    127. 

since  the  Revolution,  125. 
New   Jersey  v.   Wilson,  156. 
Nobility,  titles  of,  150. 
North  Carolina  v.  Temple,  272, 
308. 


Oath  of  office,  245. 

test,    245. 
Obligation  of  contract,  153. 
Office,  appointment  to,  188-189. 

oath  of,  245. 

power   to  remove   from,   189- 
190. 

public,  not  a  contract,  157. 

under  the  United   States,  55. 

vacancies  in,  191. 
Officers,  commissioned  by  Pres- 
ident,  197. 

of  the  courts,  211. 

of  the  United  States,  198. 

other,  in  the  House,  42. 

other,  in  the  Senate,  51. 

presents  to,  150. 
Offenses  against  the  law  of  na- 
tions, 121. 

place  of  trial  of,  264. 
Owings  V.   Speed,  300, 


Packet  Co.  v.  Keokuk,  161,  294. 
Pardons,  kinds  of,  184. 

power  to  issue  in  the  States, 
185. 

power  of  President  to  issue, 
183. 
Paris,  treaty  of,  124. 
Parker  v.  Davis,  297. 
Parliament,    pay    of    members, 
65. 

power  in  impeachment,  54. 
Parrott,  in  re,  309. 
Patents,    117. 

qualifications  of,  117. 
Patterson  v.  Bark  Eudora,  304. 


Peck,  James  H.,  impeached,  199. 
Peete  v.  Morgan,  161,  301. 
Pensacola   Tel.   Co.  v.  Western 

Tel.  Co.,  90. 
Pervear  v.   Commonwealth,  92, 

307. 
Petit  jury,  258. 

Philippines,  government  of,  236. 
Pickering,  John,  ex  parte  trial 
of,  53. 

impeached,  199. 
Piracy,  119. 

slave  trade  as,  120,  273. 
Place  of  trial.   219. 
Plessy  V.  Ferguson,  308. 
Police  power  of  a  State,  92,  280. 
Porto  Rico,  government  of,  236, 
Ports,    entering    and    clearing, 
147-148. 

no  preference  among,  147. 
Post-office   and   post-roads,   113- 
114. 

department  of,  113. 

expenses  of,  115. 

organization  of,  114. 
Powers  not  delegated,  270. 
Preamble,  27. 
Presentments,  258. 
Presents  to  officers,  150. 
President,  as  com. -in-chief,  182. 

compensation  of,  180. 

commissions  officers,  197. 

election  of,  how  determined, 
175. 

election    of,    double   returns, 
176. 

election  by  the  House,  173. 

electors  of,  169. 

executive  power  in,  196. 

message   of,   192-194. 

mode  of  electing,  172. 

nominations  for,  174. 

oath  of  office  of,  181. 

participates  in  treaties,  186. 

power  to  appoint,  188. 

power  to  convene  and  adjourn 
Congress,   192. 

power  to   fill   vacancies,   191. 

power  to  pardon,  185. 

power  to  remove,  189. 


Index 


349 


President — ( Cont'd ) . 

primary  election  of,  174. 

qualifications  of,  177. 

receives      ambassadors,    etc., 
194. 

succession  of,  178. 

term  of  office  of,  168. 

veto  power  of,  71. 
President   of  the   Senate,   Vice 
President  as,  50-51. 

pro    tempore   of   the    Senate, 
51-52. 
Presidential  succession,  178. 
Press,  censorship  of,  253. 

freedom  of,  252. 
Presser  v.  Illinois,  305. 
Primaries,  presidential,  174. 

senatorial,  45. 
Privateering,  Congress  on,  124. 
Privileged  matter,  254. 
Privileges    and    immunities    of 
citizens,    228. 

exceptions  to,  228. 

of  accused  persons,   264-266. 

of    citizens     of    the     United 
States,  276. 
Public  debt,  validity  of,  273. 
Public  acts,  227. 

Public   ministers,   exterritorial- 
ity of,  196. 

named,   195. 
Public   use,   263. 

Qualifications  of  President,  177. 
of  Representatives,  34. 
of  Senators,  49. 
Quorums,  counting  a,  60. 
defined,  59. 
in  Congress  and  Parliament, 

59. 
in    election    of   President   by 
House,  174. 

Raising   revenue,    meaning    of, 
69. 
power   to    raise,    69. 

Randolph.     Edmund,     Virginia 
plan  of,  21. 

Reed,  Thomas  B.,  counts  a  quo- 
rum, 60. 


Ratification  of  the  Constitution, 
22,    246. 

by  the  States,  247. 
Rebellion,  debts  in  aid  of,  284. 

Whiskey,  130. 

Shays's,   29. 
Recall   of  judges,  210. 
Records,  227. 
Religion  and  law,  252. 
Religious  toleration,  245-246. 
Removals  from  office,  189. 
Reporters,  duties  of,  211. 
Representation,  equality  of,  43. 
Representatives,  apportionment 
of,   38. 

at  large,  40. 

election  of,  33-34. 

number  in  first  Congress,  38. 

number   in  1913,   39. 

privileges  of,  62,  66. 

qualifications  of,  34. 

residence,   35-36. 

term   of  office,  32. 

vacancies   in   office  of,  41. 
Representative  government,  238. 
Requisition,  230. 
Resolutions,  concurrent,  74. 

forms  of,  75-76. 

joint,  74. 

use   in   admission   of   States, 
234. 
Respective  numbers,  281. 
Returns,  double,  176. 
Right  to  assemble,  etc.,  254-255. 
Rules  of  the  House,  61. 

military,  127. 

Schooner   Exchange   v.    McFad- 

don,  302. 
Searches   and   seizures,  256. 
Second  trial,  260. 
Securities  defined.  111. 
Self-incrimination,  261. 
Senate,  as  a  court,  53. 

elects   Vice  President,  173. 

officers  of,  51. 

participates    in   treaties,   187. 

presiding  officer  of,  50. 

size   of,    32. 

vacancies  in,  48, 


350 


Index 


Senators,  certificate  of  election 
of,  48. 

classes  of,  47. 

election  of,  44-46. 

privileges  of,  62-65. 

qualifications  of,  49. 

removal  of,   from  the  State, 
50. 
Shays's   rebellion,    29. 
Sherman  Act,  109. 
Silver  certificates,  107. 

ratio  of,  to  gold,  106. 
Slaughter  House  Case,  280,  310. 
Slave    trade,    acts    relating   to, 
273-274. 

not  prohibited  till  1808,  139. 
Slavery  forbidden,  273. 
Speaker  of  the  House,  42. 

may  appoint  committees,  77. 
Special  privileges  under  States, 

157. 
Speech,  freedom  of,  253. 
States,   how   admitted,   233-234. 

faith  and  credit  to,  227. 

police  power  in,  92,  280. 

prohibitions   on,    150-163. 

suability  of,  272. 

taxation  in,  87. 
Statutes  defined,  14. 
Stone  V.  Mississippi,  157. 
Story,    Judge,    quotation    from, 

163,    190. 
Sturgis  V.  Crowningshield,  102, 

154,  299. 
Suffrage,  denial  of,  281-282. 

Fifteenth  Amendment  on,  285. 
Suits  against  States,  271. 
Supreme     Court,     how     consti- 
tuted, 203. 

jurisdiction  of,  216-217. 
Swayne,  Judge,  impeached,  199. 

Taxation  by  the  United  States, 

83. 
limitations  on,  83-85. 
Taxes,  cajiitation,  145. 
direct,  86-87. 
export,   146. 
income,   87,    286-289. 
indirect,  86. 


Taxes — (Cont'd). 

kinds  of,  85. 

on  goods   for  export,  159. 
Tenure    of   oflBice,    190. 
Test  oath,  245. 
Territories,  courts  in,  206. 

how  represented,  40. 

of  the  United  States,  235. 

provisions  respecting,  234. 

status  of  new,  233. 

western  claims  to,  232. 

when  become  States,  233. 
Three-fifths  rule,  37. 
Tindal  v.  Wesley,  308. 
Titles  of  nobility,  150. 

quotation  from  Federalist  on, 
158. 
Tonnage,  defined,  161. 

duties  of,  forbidden,  161. 
Trade-marks,  118. 
Transportation  Co.  v.  Wheeling, 

93,  161,  293. 
Treason,  defined,  220. 

and  rebellion,  223. 

attainder  of,  222. 

conviction  of,  221. 

punishment  for,  222. 

misprision  of,  223. 
Treasurer,  duties  of,  149. 
Treaties,  alliances  and  confed- 
erations,  150. 
Treaties  defined,  186. 

take  effect  when  signed,  188. 

weakness  of,  187. 
Trial  by  jury,  218-219. 

in  suits  at  common  law,  266. 

second  for  same  offense,  260. 

waiver  of,  266. 
Troops   of  war,   quartering  of, 
forbidden,  255. 

States  not  to  maintain,   161- 
162 
True  bill,  259. 

United   States  bonds,  88. 
citizenship  in,  276. 
commissioners,  211. 
marshals,  211. 
notes,  108. 
reporters,  211. 
treasury  notes,   109. 


Index 


351 


United  States  v.  Fox,  229.  304. 
United  States  v.  Freight  Co.,  95. 
United  States  v.  LeBaron,  197. 
United  States  v.  Perez,  260,  306. 
United  States  v.  R.  R.  Co.,  84. 
United  States  v.  Smith,  298. 
United    States    v.    Wong    Kim 

Ark,  98,  99,  276,  296. 
United    States   v.    Villato,    221, 

296. 

Vacancies  In  office,  In  Congress, 
41,  48. 
President's  power  to  fill,  191. 
Van  Brocklin  v.  Tennessee,  84, 

293. 
Veazie  v.  Moore,  91,  294. 
Veto  power,  71-72. 
Vice  President,  election  of,  by 
Senate,  173. 
duties  of,  51. 
method  of  electing,  172. 
oath  of  office  of,  181. 


Vice  President — (Cont'd). 

presides  over  the  Senate,  50. 

qualifications  of,  178. 
Voting,  methods  of,  63. 

Waiver  of  trial,  266. 
Wallach  v.  Van  Riswlck,  303. 
War,  declared  twice,  122. 

power  of  Congress  in,  123. 

power  of  President   in,  182. 

power  to  declare,  121,  123. 

States  not  to  declare,  161-162. 
Warrants,  256. 

general,  forbidden,  256-257. 

searches  without,  257. 
Washington,   view   of   vacancy, 

191. 
Weights  and  measures,  110. 
Wheaton  v.  Perez,  297. 
Wilson,   Woodrow,   message   to 
Congress,  193. 

Yea  and  nay  vote,  63. 


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